Labour Law: Complete Notes: Benedet: 2010/2011 Term 1 These notes are a compilation of my class notes, my notes from

rom the te tboo!, and my notes from the course pac!a"e# The spellin" and "rammar below is atrocious, but $ couldn%t be bothered to fi it# &ood luc!' (opefully some of this is helpful#

Legal Response to Labour Issues )iscrimination o hard to claim, but there are le"al discrimination o becomes easier with clear standards and benchmar!s o most remedies a*ailable only to those employees who ha*e already less &lobal Labour +tandards o could be enforced *ia tariffs, ta incenti*es non,citi-ens particularly *ulnerable income ine.uality o not directly a labour law .uestion, but does ha*e a labour implication Arthurs /The Transformation of 0or!, the )isappearnce of /0or!ers/ and the 1uture of 0or!place 2e"ulatioN/ 2003 from 1340s to 1350s, wo!ers en6oyed risin" wa"es, more 6ob security, "reater wor!place protections, and so on we ha*e stuff li!e minimum wa"es, pro"ressi*e income ta ation, li*in" wa"e campai"ns, etc as a result of unions and social democratic parties o all in the conte t of fa*orable labour mar!et conditions, by an e pandin" and increasin"ly producti*e economy chan"es started happein" in the 1350s Chan"es Technolo"y o intensified the di*ision of labour and its "eo"raphical dispersal o polari-ed wor!force by creatin" some !nowled"e wor!ers, but consi"nin" uns!illed wor!ers to the mar"in o increasin"ly self,mana"ed wor!ers in !nowled"e sector, uns!illed increasin"ly disciplined and monitored by computers o acceleratin" chan"e and rapid obsolecense of wo!er s!ill +hfit from 7anufacturin" to ser*ice o manufacturin" 6obs lost, mo*ed to lower payin", less benefit 6obs in the ser*ice sector with low le*elf o unioni-ation fle ibili-ation of the wor!force o 6obs no lon"er permanent, employees will be let "o 8+89 where needed o part:time, sort,time wor! used as a reser*e army of labour demo"raphy o increasin"ly hetero"enous wor!force, more women and *isible minorities o youn" people older than they used to be when ;and if< they "et 6obs o so more and more di*erse, but perhaps solidarity more challen"in" "lobali-ation

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outscourin" in a "lobal labour mar!et emloyers ha*e the option to mo*e manufacturin" and ser*ice 6obs away from well,paid unioni-ed wor!ers to cheaper countries mere threat of mo*in" has downward effect on wa"es#

)isappearance of 0or!ers idea of people identified as /wor!ers/ or /wor!in" class/ increasin"ly sounds anachronistic people identify as consumer, or perhaps when e periencin" unfairness as members of a disenfranchised "roup solidarity buildin" e ercise of wor!ers wor!in" to"ether under poor conditions no lon"er e ists +houldn%t pretend some thin"s ha*en%t "otten better, wor!in" people are better off than they used to be, but as a .ualtitati*e description of a "roup /wor!ers/ ha*e disappeared as a sociolo"ical cate"ory but in a .uantitati*e sense, there are still a "reat many wor!ers o and they ha*e a lot to be mad about o income ine.uality, ine.uality in li*i"n conditions, paritcipation in politicas, educational and occupational opportunities, etc# but for whatee*er reason, labour mo*ement in disarray o labour issues rarely central to political debates o unions increasin"ly unable to /deli*er the *ote/ o labour ministries shrin!in" in response o wor!ers not *iewed as a constituency, but rather as a resource that must be trained, de*eloped, and so in order to impro*e business The future of wor!place re"ulation o interest in creatin" new labour standards *ery low o as is restructin" the labour mar!et to ensure full employmnet "lobali-ation and monetarist policies ha*e put unemployment int he hands of ban!ers, and neo,liberalism ma!es re"ulation anatehma o collecti*e bar"aini" wea!ed as well =+ failure to pass card,chec! o e*en putati*ely pro,labour "o*ernment aren%t adoptin" new labour le"islation e*eryone focused on !eepi"n the economy "oin" economy dictatin" policy to "o*ernment o because the a*era"e wor!er and the a*era"e 6ob is chan"in", labour policy needs to ad6ust can%t 6ust focus on the male breadwinner in the *ertically inte"rated company different !inds of wor!ers ha*e different !inds of needs and must be accomodated and unions sometimes *iew this as -ero,sum, accomodatin" one person means depri*in" another colecti*e bar"aini"n on a plant,to,plant basis ma!es little sense when e*eryone is chan"in" 6obs so ofte fle ible wor!force aso ma!es pro*ision of benefits more complicated, and part,time wor!force often not "ettin" access to these /employment/ benefits# manufacturin" 6obs no lon"er the norm

may need some transnational law since employers can pic! up and lea*e may need to consider who should be responsible for payin" for the constant retrainin" necessary for a wor!er to adapt with the rapidly chan"in" technolo"y and employment how do ma imum hours, o*ertime, etc function in a />ust in time/ world where businesses are e pected to be open around the cloc!#

Three options o for"et abotu labour law, and focus on human ri"hts rather than wor!ers% ri"hts o try and wor! within capitalism and laisse- fair afterall, under capitalism some employers reali-ed hi"h,performance systems that re.arded /emplowered/ wor!ers and treated them well increased performance and producti*ity o try and resusicitate the labour mo*ement there are some new successful or"ani-in" campai"ns amon" low,paid ser*ice wor!ers unions and social mo*ements may unit to try and "et "ains for e*eryone *ia# li*in" wa"es, wor!,life balance professionals, s!illed technicians, athletes all ha*e new strate"ies and institutions of collecti*e action that may be e portable# this will depend to the e tent that crises in capitalism will ma!e people aware of the precariousness of their position, and remind them of the fallibility of capitalism so it is possible that li!e the street railways bein" re*i*ed as L2T, labour standards may reappeare in the 21st centurty, re,en"ineered, renamed, and ready to "o as a *ehicle of a re*i*ed wor!ers% mo*ement towards the "oal of social 6ustice in the wor!place#

Fudge, The New Workplace: Surveying the Landscape 2003 loo!s at chan"es o*er time of the labour mar!et 1340s: +tandard ?mployment 2elationship o ser*ed as the basis of an historical compromise between wor!ers, employers, and "o*ernments follow ww2 o aimed at protectin" employees from economic/social ris!, reduce social ine.uality, increase economic efficiencies o hi"hly re"ulated by laws and collecti*e bar"ainin" *ia union members typically male, semi,s!illed wor!er in a lar"e industrial corporation o men supported women, women loo!ed after children o few *icisble minoirties o in early 1350s public sector bar"ainin" be"ins, real wa"es continued to rise and led to a risin" Canadian union density also, more and more women entered the labour force 13@0s: the 1emini-ation of Labour o in 13@0s producti*ity decreased and unemloyment and inflation "rew union membership pea!ed at A0 precent women continued to enter the labour force in order to !eep household li*i"n standards stable in the face of fallin" male wa"es

women pressed for wor!place ri"hts, includin" protections from harrassment, 6ob protection, pre"nancy benefits, pay e.uity o meanwhile, labour mar!et outcomes polari-in" profoundly, and the old norm collapsin" 2is! and 2eward in the New ?conomy o &lobali-ation and Neo,Liberalism undercut the nationstate and the "oals and means for labour protections $71 and 0TB blame labour mar!et r"idiites for unemployment and poor performance aim at decentriali-in" bar"ainin" new focus on employin" e*ery adult, male or female wor!fare more 6ust,in,tiem re.uires more wor!place fle ibility small business profliefarte, which meant fewer /1ordist/ inte"reated procution enterprises N81T8 led to ocntinental inte"ration benefits in Canada be"an to mirror the =+, and our economic and welfare policies con*er"ed ta cuts, e penditure cuts o Creatin" a 1le ible Labour 7ar!et in Canada Canada underwent a dramatic restructurin" as a result of free trade and new lo"istic system maunfacturin" rapidly shran!, as did union denisty *ery low in consumer ser*ices and financial and business ser*ices, much hi"her in public ser*ices women sli"htly mor eli!ley to be unioni-ed as a result of more li!ely to be teachers, nurses, etc Coun" wor!ers *ery rarely unioni-ed hi"h le*els of education increasin"ly re.uired for all wor! more people wor!in" for smaller companies, who pay less, pr*ide fewer benefits and 6ob security, and union representation less common more and more part,time, precarious wor! especially for women and new immi"rants, *isible minorities rarely room for promotion while fewer 6obs fit the /standard model/, they still ma!e up DEF of 6obs proportion of "ood and bad 6obs ha*e been constant but .uality of new 6obs .uestionable more li!ely to be temporary, ununoi-ed, without a retirement plan "rowth in real wa"es sta"nant male median income fallin", while female median risin" ;tho"h should re"ress ot the mean< so polari-ation of income some winners, some losers this risin" tide is not liftin" all boats labour supply also more hetero"enous than e*er, but *isible minorities tend to be concetrated in metropolitan centers paid less, less 6ob security, more lie!ly ot be employed o

women of colour more li!ely to do manual labour *isible minorities more li!ely to be low paid, face discrimination abori"inal and disabled people also face hardship, poor employment outcomes hi"her unemployment rates, lower education attainments but they are fertile and will ma!e upa lar"er and lar"er part of the population, some recent impro*ements in western Canada possibly as a result of ti"hter labour mar!ets and impro*ement in education le*els disabled people as often unemployed most could be employed, but tend to be clustered in non, standard 6obs bi""est chan"e participatin of woemn ma6ority of women, e*en those with children, are wor!in" married with children often wor!in" part,time increasin" hours, particularly for men, has len"thened the standard wor! wee! and contributed to wor!,life conflict the len"thenin" hourse, deterioation in wa"es puts household under pressure women with children, youn" families, particularly *ulnerale need to wor!, but hard to support children on tose earnin"s di*orces on the rise, as are lone,parent ffamilies Coun" people ha*e to wor! harder and lon"er to ma!e decent money leadin" to lower fertility old people formin" a "reater part of the popluation, and are wor!in" lon"er and lon"er New Labour Law Norms for the New ?conomyG o union represtnation declinin" o little apetite to modify collecti*e bar"ain le"islation to ma!e unioni-ation easier o public ser*ices used to enforce labour stnadards and human ri"hts also collapsin" o the new economy is creatin" winners and losers, and most of those losers are traditionally disad*anta"ed "ruops ;particularly *isible minorities< o 2isi"n tide of economic prosperity has not lifted all bots dspite decent "rowth, low unemployment and and all,time hi"h employment rate, 6obs are increasin"ly insecure, and the standarad employment relationship is deterioratin" o need to retar"et employment and labour law at the people who need it in the new labour mar!et should pro*ide e.ual access for men and women, support lieflon" learin", and accomodates di*ersity

Arthur/Fudge: Fordist Model 1ord belie*ed in payin" his employees well, since they were also his customers o wanted a population where people had disposable income o =topicG women had few ri"hts, as did minorities women *ulnerable to di*orce, death of spouse, etc women%s mo*ement rises in response and women mo*e into the econom

as wa"es sta"anted, the idea that a sin"le income could support a family became outdated# o did the mo*e of women into the wor!force cause this recessionG

Introduction to the Common Law Contract of Employment Common law contract of employment is a normal contract between two parties, offer and a"reement o e chan"in" capital for labour o in theory, terms of employment can be ne"otiated, but in reality this rarely occurs o the normal situation is the employer sets the terms and the employee can ta!e it or lea*e it indeed, often the employee doeasn%t find out the terms of employment until after they%*e been hired in speciali-ed, hi"hly s!illed field this is less common and employees may play a role in settin" the bar"ain employment standards statutes putlimitations on the freedom to draft employment contracts so the freedom to contract is sub6ect to statutory limitations o for e ample in common law you could refuse to hire someone because of their race cannot force someone into enterin" a contract o (28 allows a remedy here by complaint to tribunal

Brian A., Langille )ro% 'anada

!uy "avidov, #Beyond $%ployees and &ndependent 'ontractors: A (iew

Bein" defined as an employee or independent contractor elads to a different pac!a"e of ri"hts o ie# notice only applies to employees# +tatutory definitnios not helpful, often circular or *aucous# new cate"ories li!e /)ependent contractor/ attempt to fill the "ap, but the distinction remains# 0hether someone is to be defined as contractor or employee depends on conte tH it is possible to be a contractor for employment purposes but an employee for *icarious liability# 1or labour, basic distinction is that employees are in need of protection and ha*e a particular employer, while contractors are in a position to protect themsel*es#

1ourfold Test Basically the traditional test o Control o ownership of tools o chance of profit o ris! Boils down to whether wor!er is controlled by employer, and whether wor!er is economically independent from employer

o ownership of tools simply e*idence of these thin"s Control means more that direct control o power to discipline indicia of control, so is power to promote#

1undamentally, the distiction is between control and economic dependence# This is reflected in the other traditional test, the /business or"ani-ation test/ which came from dennin"# where employee fullyt inte""rated into business, contractors wor! is only accessory to business#

7ust !eep eye on the "oal: ma!in" sure those with an identifiable employer that need the common law protections are "i*en them New *ro+le%s new cate"ories of wor!ers that fit uneasily into traditional employee/contractor dichotomy# contractors who are not in a relationship with a sin"le identifiable meployer, but are ieconomically dependent due to their wea! mar!et stance o ie# freelance reporters, etc#

New $cono%y and the ,rgani-ation o) Work proliferation of part time, causal, temporary employees subocontractin" and outsourcin" common in order to impro*e efficienices and reduce ris!s, cuttin" labour costs# 0or!ers becomin" in*oluntarily self,employed# 0hen wor!ers are economically dependent on an employer, e*en if they are not formally /employees/ they should be protected rather than left alone in the free mar!et#

Establishing the Employment Relationship +ince employment is fundamentally treated as a contract, courts were often reluctant to force people into them o this lead to racism, etc# o le"islature e*entually inter*ened#

Seneca 'ollege o) Applied Arts and Technology v. Bhadauria, ./01/2 3. S.'.4. /1/ $ssue: whether the +CC should affirm BNC8%s decision to reco"ni-e a new tort of breachin" the (uman 2i"hts Code# 1acts: o 9 is hi"hly educated imi"rant, well .ualified# o 8Nswered ads placed by the colle"e# o Ne*er "i*en an inter*iew nor told why she was re6ected

o +uccessful candidates were less .ualified, but not imi"rants# o Claimin" discrimination and breach of the (2C o BNC8 willin" to reco"ni-e an idependent tort of discrimination 8nalysis: o typically there is no such tort as refusin" to consider a contract# o you can%t create a new tort out of a statutory obli"ation, especially because the (2C itself contemplates a remedy# o 9 should ha*e used the remedies in the (2C to address her problem 2atio: o No such tort as employment discrimination# sidenote o $n a Case called Co"nos, the +CC held that you can brin" a tort if you are hired under false pretenses 9 was hired from old 6ob under apprehension it would be ama-in" new 6ob turns out to suc!, but employer wants to hold him to ocntract +CC says you can%t do this, perhaps somethin" a!in to misrepresentationG o a tort of /wron"ful hirin"/ in any case#

Rights under the Contract of Employment mostly limited to termination durin" the employment you are bound by the terms of contract, sub6ect to tstatutory protections but common law says you cannot be terminated without 6ust cause, or without due notice o no ri"ht to !eep 6ob o if the employer "i*es sufficient notice, you can be fired for any reason or payment in lieu of notice rongful !ismissal most disputed area )ismissal is wron"ful where: o the employer dismiesses without cause and without notice o constructi*e dismissal the employee .uits in repsonse to repudiatory breach of the employment contract o employer dismisses without notice, alled"in" but failin" to pro*e cause# o employee dismissed in breach of a statutory duty or in breahc of producedural fairness if the employment relationship is a statutory one in which the principles of administrati*e law apply# ?IC?9T$BN o where you are employed in a federally re"ulated underta!in" and "o*erned by the Canada Labour code e"# ban!in", airlines, communications o there is a special labour re"ime throu"h which these employees can "o to an administrati*e deicision ma!er who has the power to reinstate you into your position

Reasonable "otice of #ermination +ometimes the employment contract sets out notice period or payment in lieu of, but courts may not enforce if no e press pro*ision, they will loo! at intent of parties, include past practice and policy statements in (2 documents, etc# But for whate*er reason, in Canada the courts ha*e usually 6ust decided what is reasonable in the circumstances, disre"ardin" hte parites intentions# ?mployment +tandards act sets out minimum notice standards

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typically .uite low, and the common law often will "i*e more so if you are terminated without notice, you can sue for wron"ful dismissal but you can reco*er dama"es, not the 6ob only economically feasible where the employee ma!es a lot of money so most suits filed by employees who ha*e a lon" period of ser*ice and who are well paid#

'ronk v. 'anadian !eneral &nsurance 'o. 5/0067, /0 ,.48 59d7 :/: 5!en. "iv.7 $ssue: what is the appropriate period of notice for a cler!in" staff that has wor!ed somewhre a lon" time# 0(ether an employee%s position in the hierarchy of a company is a ma6or factor in settin" the period of compensation to which the employee is entitled when she is dismissed without cause# 9 dismissed from cler! psoition due to restructirin"# 9 elderly, employed thetrer for a lon" time# 0anted 20 7Bnths notice

8nalysis ;7acpherson< ?dna lost 6ob due to downturn, restructurin"# Bther employess ha*e "otten 20 months notice in the past, but only when senior mana"ement# 9 not a senior mana"ement# Typically reasonable notice based on: o character of employment o period of employment o a"e of employee o a*ailability of similar employment for a person li!e the employee# Clearly 9 wor!ed there a lon" time, and needs a new 6ob# Too poor to retire# 0ill be hard for 9 to find a new 6ob# 9 has wor!ed their a *ery lon" time# ) says she interrupted her employment o not really, she went down to part time#

o she was ha*in" children# o ) as!ed 9 to come bac!# ) says the hi"her someone is in the company hierarchy, the harder it is for them to find similar labour, so that clerical wor!ers need less notice# o plus senior mana"ers suffer much sti"ma o Court, no, e*eryone feels bad# Court loo!s at other cases o cases with *ery lon" periods of notice typically were senior mana"ement# o but in all these cases the employees were able to find new employment relati*ely easily, "i*in" lie to the idea that senior mana"ement has ahard time findin" new wor!# o besides, the hi"her education necessary to become a mana"er will ma!e it easier to find a 6ob# o loo!in" at actual data, an a"ed secretarial wor!er is "oin" to ha*e much more trouble findin" a new 6ob# +o 7acpherson "i*es her a lon"er period of notice, 20 months#

8nalysis: LaCourciere 2e*erses 7ac9herson# T> shouldn%t ha*e used his own social science data to reach a conclusion ad*erserial sytem re.uires that only counsel brin" in new e*idence# stare decises and the need for reliability mean we should respect presendence# o don%t want to create disruption, uncertainty because this is fundamentally a contract relationship, and the parties would not ha*e intended a lon" period of notice, a person in a low position will not "et a lot of notice# o len"th of notice depends on what parties would ha*e intended at formation of the contract what constitutes reasonable notice should not chan"e on the basis of the current economic climate so reduces it to 12 months#

2atio:

factors used to calculate reasonable period of notice o character of employment o period of employment o a"e of employee o a*ailability of similar employment for a person li!e the employee# but in "eneral, not in the specific economy 9eople hi"her on the hierarchy will li!ely "et more notice# 7ay refer to what parties would ha*e intended at the time of contract

$ummary !ismissal for Cause $f an employee commits a breach that is se*ere enou"h to constitue a repudiation of the employment contract, the employer has 6ust cuase for dismissal, and is not re.uired to "i*e notice/pay in lieu of notice

o may also sue for dama"es from breach 6ust cause acts as a defence to an action for un6ust dismissal employers may list in contract those thin"s that are "rounds for dismissal, but not that often, since there is a dan"er courts will read this list as e hasti*e stanard for 6ust cause typically *ery hi"h, e*en where the contract e plicitly states the employee%s misdeed was cause for dismissal o so most of the time, easier for the employer to 6ust pay the person notice rather than attempt to sue here#

;c<inley v. B' Tel, .3==/2 3 S.'.4. />/ $ssue 0hen can en employer be 6ustified in summarily dismissin" an employee as a result of the employee%s misconductG o is any dishonesty sufficient, or must nature and contet of dishonesty be consideredG

1acts employee had a heart condition on lea*e, wanted a new, less stressful positon but 7&7T wanted him bac! in his own role# )idn%t want to, was terminated ?mployer ar"ues 6ust cause based on a letter from a )r# which said that if 9 used beta bloc!ers, he could return to wor! o +ince 9 didn%t tell ) about this letter, ) alled"es dishonesty#

8nalysis there are two lines of authority o one su""ests that the nature of the dishonesty needs to be considered o the other that dishonest conduct alone is 6ust cause# Conte tual approach o 0hether dishonesty : 6ust cause matter of fact, based on partiuclar circumstances aroudn the employee%s beha*ior o consider nature and de"ree of misconduct whether it *iolates the /essential conditions/ of the employment contract or breaches an employer%s faith in an employee# 6ust cause per se# o line of cases su""estin" that dishonesty in and of itsefl pro*ides 6ust cause, no matter the circumstances# o once the confidence between employer and employee breach, as a matter of law there is 6ust cause# o so a findin" of dishonestly leads to a findin" of 6ust cause as a matter of law# Ta!es conte tual apprach o test is whether the employee%s disohnesty "a*e rise to a brea! dwn in the employmnet relationship#

Test o 0hether the e*idence established the deceitful conduct on a Bo9 o 0hether the nature and de"ree of the dishoensty warranted dismissal# Both are findin" of fact# 8im here proportionality# o wor! is hi"hly important to people, they shouldn%t be depri*ed of employment without notice unless serious misconduct# 1inds that the 6ury could ha*e reasonably found that the 9 was not decei*in" the ) o while some inconsistency may e ist, there is e*dience that pro*ides sufficient basis for a 6ury to conclude that 9 reasonably and truly belie*ed that his doctors were of the *iew that beta bloc!ers should only be used as a last resort#

2atio: To determine whether dishonesty will pro*ide 6ust cause to terminate without notice, must find o whether the e*idence establsihed the deceitful conduct on a Bo9 o whether the nature and de"ree of deceit warranted dismissal# really must loo! at the seriousness and conte t of the dishonesty and whether it has a deep impact on the employment contract# must balance need for wor!er *ersus needs of employer o care must be ta!en when e aminin" employment laws which allow the person to be terminated#

allace !amages where you are dismissed in a particularly hi"h handed or reprehensible way, and it turns out to be wron"ful, you can "et ele*ated dama"es

#he Right to %argain Collecti&ely: $' ()d* of the Charter +rigin/rationale for collecti&e bargaining so terms of employment may be set out in the common law employment contract or may be set out by statute o but this lac!s fle ibility, and doesn%t address the needs of each industry so bar"ainin" is important, but statutory support is necessary because otherwise when or"ani-ed wor!ers "o to mana"ement, they mana"ement may refuse to recon"i-e the union, preferrin" to deal with wor!ers indi*idually in the 13th,20th Century, unions were criminali-ed, or at least not reco"ni-ed o *iewed as bein" restraint on trade o labour monopoly, pushin" up wa"es and prices o political oppostion because unions were understood as sub*ersi*e, a"ents of Bolshe*ism +o early stri!es were simply for reco"nition, and since they were ille"al, often hi"hly *iolent in order to a*oid this, modern labour law was created#

agner Act "uarantees ri"ht to form a union and the ri"ht of the union to be reco"ni-ed o once union *oted in, employer can only deal with union ;rather than indi*idual wor!ers< Bne union per wor!place o different in ?= +tri!es le"ali-ed and re"ulated No assumption that emloyees will want a union, unions must be elected, and there is no presumption they will be

$teps in Collecti&e %argaining 2eco"nition o wor!ers form union, employer reco"ni-es union o certification system Bar"ain o union and employer bar"ain, ta!e results to membership 8"reement formed o any dispute about interpretation "o to "rei*ance/labour arbitrarion o arbitrators chose by both parties, "i*in" arbitrator a "ood reason to be impartial bar"ain e pires o used to be short, now lon"er a"reements more common o bar"ain contines +tri!e/Loc!out o if bar"ain" fails, sides can wal! away to pressure each other#

4oy ?. Ada%s, &ndustrial 4$lations under Li+eral "e%ocracy: North A%erica in ',%parative *erspectives 7odern employment relationship hi"hly re"ulated as to terms of employment o this re"ulation may be made by laws and re"ulations dominant form of control in communism o may be created by employer ie# early capitalims o may be created by employee ie# early trade unionism istablished on rules for minimum wa"e, wor!load, apprecticeship, etc# o nowadays a bilateral or multilateral process Now "enerally accepted that employees should ha*e somesay o*er wor!, possibly throu"h union mana"ement bar"ainin", *arious administrati*e bodies, and to a de"ree by inid*idual bar"ainin"# o but most rules apply to e*eryone in the wor!place and cannot be indi*idually *aired#

NBrth 8merica tends to rely almost e clusi*ely on collecti*e bar"ainin" in order to add democracy to the wor!place# (istorically impetus for unionism was for industrial democracy# 9eople didn%t want to become wa"e sal*es# o wanted to be able to participate in the ma!in" of rules for the wor!place# $n NBrth 8merica focus tended to be more on achei*in" somethin" more li!e e.uality of bar"ainin" power, to impro*e wor!place conditions o this tends to indicate tht where conditions are "ood, there is no need for collecti*ely bar"ainin"# $n ?urope it is understood taht collecti*e bar"ainin", as an instrument of industrial democracy, should be uni*ersally a*ailable 6ust li!e the *ote# o employer had a duty to reco"ni-e the employees $n early 20th century N8, this was not reco"ni-ed# 0hile ri"ht to unioni-e became protected, employers made clear that employees who attempted to or"ani-e would face the wrath of mana"ement# 0hen the threat of reprecussions was ta!en away, as in the 13D0s when the 1ederal &o*ernment made clear it was wholly neutral as to unio-ation, employees unioni-ed in "reat numnbers# 1aced with hostility by mana"ement, the purported /Choice/ not to union-ie is not a truly free one# Certification o process by which a union is recon"i-ed as representin" wor!ers o employers almost uni*ersally refuse to *luntarily reco"ni-e o the early Labor Board had to "et ino*l*ed in nearly e*ery case of reco"nition and issue orders insistin" that a reluctant employer enter into ne"otiations# o employers successfully pressure the board to chan"e from a simple /Card/ system of reco"nition to a *ote# o this "a*e the employer a chance to campai"n a"ainst the union o employers were pre*ented from campai"nin", but were able to "et that chan"ed by challen"in" *ia free speech o so certification process became a contest rather than a free process of wor!ers appointin" an a"ent to wor! on their behlaf# o ?mployers went to "reat len"ths to !eep unions out, and mana"ers who failed to do so were punished as a result# o 8s a result, unioni-!n" employees are threatened, intimindated, and so on o employers let the employees !now they are stron"ly opposed to it# o +ince the costs of certification are "reat, typically only truly disatisfied wor!ers are willin" to ta!e the steps necessary o so instead of a uni*ersally desireable tool of industrial democracy, collecti*e bar"ainin" is *iewed as a remedy for poor mana"ement# o 7ana"ement doesn%t want to be *iewed as poor, so resists unioni-ation, and as employers resist unioni-tion, it mbecomes difficult to bar"ain collecti*ely o thus the 0a"ner act, intended to help encoura"e collecti*e bar"ainin", is bein" used a"ainst it# Canadian Jariant o similar to the =+, but Card si"nin" is enou"h# carried out in secret and ma6ority support can be "ained without employer finidn" out# tends to be faster process as well punishment for animus more se*ere stron"er rules a"ainst surface bar"ainin", *ia first contract arbitration#

these chan"es often the result of N)9 efforts e*en where not in power, ha*e publici-ed and politici-ed these issues# o +till much worse than ?urope, so 87erican adoption of the Canadian model will not brin" about the uni*ersal participation consistent with the lo"ic of a democractic society# Bar"ainin" +tructure o basic unit is the bar"ainin" unit, composed of a "roup of employees wor!in" in a sin"le plant ;in N8, most common model<# o may also be a class of employee employed in *arious locations by the same employer o or a certain class of employee wor!in" for many different employers most common in ?=, found in N8 in construction, hospitals, etc# o or all employees employed by all employers who belon" to a particular employer%s federation somewhat common in ?= o B*erlap of unit somewhat common# o ?= focuses on the whole industry, whereas N8 tends to be plant by plant# possibly as a result of ?= acceptance of unioni-ation in principle *s# N8 resistance# ?= may ha*e accepted in order to protect the hi"her le*el decisions, and unions wanted these !inds of common rules $n ?=, shop floor le*el unions less common# this is chan"inH increasin" shop,floor labour representati*es# o )ecentrali-ed unioni-ation in N8 sometimes "ood for unions more representati*e, responsi*e to actual issues and for employer may be tailor made to suit the nature of the business howe*er, process less public, no accountin" for impact on the "eneral public interest# o Best system may be one where "eneral issues, li!e wa"es and pensions, are made on a hi"her le*el, whil specific issues such as schedulin" are ne"otiated at lower le*els# =nion Co*era"e o much better in ?= o Typically employers more li!ely to belon" to an association than employees to union# o unassociated empooyre has little ability ne"otiate with union# union may be able to put a lot more pressure on indi*idual employers o in ?=, possible to benefit from collecti*e bar"ain without bein" a union member ri"ht to bar"ain collecti*ely understood as meanin" that you cannot be forced to 6oin a union# o $n N8, in order to wor! in a union shop, you must be in the union ;or at least pay dues< at union%s re.uest, may ha*e dues automatically ta!en out of chec!s ;2and formula< sometimes ne"otiated, in Canada in many 6urisdictions madated by statute# so sometimes people forced to 6oin a union a"ainst htier wishes, which *iolates thir freedom of association# o

+cope of the $ssues o while in theory almost anytin" could be on the table, but mainly deals with wor! conditions# o since plant,by,plant bar"ainin" in N8, a lot of *ery detailed issues can be addressed that cannot be dealt with in industry,wide, ?uro,style bar"ainin"# o =+ spilt mandatory and premissi*e issues mandatory must be dealt with if one party re.urests permissi*e issues don%t ha*e to be unless both parties a"ree# but this is not in Canada# Bar"ainin" 9rocess o in N8, collecti*e a"reement written, co*ers all ne"otiated issues, and lasts for a fi ed period of time# o by end of period, union and employer ha*e a lon" list of demnads, some of which they don%t truly indtend to "et o then they set an a"enda and be"in bar"ainin"# o in ?=, sometimes fi ed periods, sometimes more open# o may in both N8 and ?= bein" informal a"reements that don%t wait until contract e pires howe*er typically there is a mana"ement%s ri"ht clause, which basically "rants any residucal issues to mana"ement decision# in ?=, new issues will be up for bar"ain immiedaitely, includin" allowin" stri!es in ?=, may ha*e seperate Ks dealin" with sepearte issues that e pire and different times o $N N8, sin"le bar"ain theory aimed at minimi-in" disruption but on the other hand, when parties ha*e to deal with a lot of issues, more difficult and more li!ely to result in intransi"ent conflict bar"ainin" o*er a sin"le issue may be much more stria"htforward o $n N8, much more ha""lin" o $n ?=, parties e pect to "et *ery close to what they first propose# Contract 2atification and Bar"ainin" 8uthority o in N8, where any tentati*e a"reement made, "oes to union to ratify if union doesn%t accept, then bar"ianin" must resume# o $n ?=, union leaders ha*e power to immediately accept a bar"ain can be effecti*e and employers li!e it, but may lead to wildcat stri!es Le"al +tatus of Collecti*e Bar"ains o binidn" e*erywhere but Britain o $n ?=, terms of bar"ain "o into indi*idual contract this may allow employees to supplement the terms with their own indi*idual bar"ains o $N N8 terms are usually the actual terms of the employment# under 0a"ner model, employees "i*e up their ri"ht to enter into indi*idual bar"ains when they "et a collecti*e bar"ain so either/or# unioni-ed employees thus dont ha*e the ri"ht to sue for common law ri"hts of employment# o &rei*ances are normally dealt with formally in N8 o $n ?=, main le"al points of friction deal with where an employee and employer seperate /"rei*ances/ in the N8 sense are usually dealt with informally Le"ality of +tri!es

normally le"al, but hi"hly re"ulated some countries use purposi*e approach to definin" stri!es which mean political actions remain le"al o in Canada, any concerted action to reduce procudtion is a stri!e# o =+ has .uite broad ri"ht to stri!e, includin" non,unioni-ed employees, but "i*en the prospect of retaliation from employer, it is rarely used# no one willin" to protect the wor!ers# o Canada stri!in" re.uires unioini-ation different from international standards o 7any places do not allow essential ser*ices to stri!e# o $n N8, and some ?= counrties, state may le"islate the ends of dispute# o $n Canada it is used pretty often# CBntinuation of employment o $N =+, le"al to hire scabs only if the union is stron" enou"h to ne"otiatie their return to wor! will they "et their 6ob bac! from a scab# this is not common internationlaly# typically once the str!e is o*er, the employer must hire bac! the stri!ers# Loc!outs o employer counterpart to the stri!e tell the employees not to come to wor! until dispute settled# &rei*ance 9rocedures o typically "rie*ance occurs where employee does not thin" some part of the K is bein" apllied fairly to him or her o if the rep a"rees case has meirt, formal written "rie*ance o final step bindin" arbitration, which while not /le"al/ per se, has produced a !ind of wor!place 6urisprudence# o 7uch less formal process in ?= final step is labor court because collecti*e a"reement terms are mo*ed into the indi*idual contract, the indi*idual can pess their own case# labour court 6ud"es appointed with consent of union and employer reps# o actually the way that employees in ?= and unioni-ed employees in N8 are treated are remara!bly similarH the !ey difference is that unor"ani-ed employees in N8 are denied such protections# can be dismissed at any time for any or no reason# in Canada, duty to "i*e notice# o N8 allows reinstatement of wor!ers, typically ?= does not# courts usually "i*e finiancial compensation instead 2i"ht of 1$rst $nterpretation o ?mployer has the ri"ht to fire employee, then "rei*ance be"ins o uni*ersal in N8 o $n ?=, some countries "i*e union ri"ht of first interpretation if the employer wanted to fire someone and the union did not a"ree, the indi*idual would !eep wor!in" pendin" a decision from the labour court# seems to ha*e wor!ed pretty well# CBllecti*e Bar"ainin" and the New $Ndustrial 2?lations o o

o o

historicallly unioins bar"ained *ery hard to "et the best possible terms for their members, where mana"ement did the same to "et the best result for shareholders so hi"hly ad*ersarial on"oin" reco"nition that union,man"ement cooperateion may help impro*e .uality and producti*ity mana"ement see!in" union cooperation some unions fear this is a tric! to "et members to accept additional responsibilities withou more benefti $n ?u this is .uite common, there is a *iew that it ma!es wor! more satisfyin" but also more producti*e#

E,cluded Employees Not all employee is "i*en access to collecti*e bar"ainin" o by statute, sometimes "roups li!e firemen, plice, etc, are e pemt from collecti*e bar"ainin"# Bur system is created by 1edreal and 9ro*incial statutes but some wor!ers are e cluded o some cannot form unions, others cannot bar"ain, or are not allowed to stri!e o some ar"ue this *iolates s# 2;d<, as we will see essential esr*ices typically cannot stri!e +ome cannot form unions o soldiers, mana"ers, some professionals, some a"ricultural wor!ers, domestic wor!ers

Labour #rilogy series of cases in 13@5 which dealt with application of 2;d< to unions o 2;d< not found to co*er the ri"ht of unions to stri!e or ba"ain collecti*ely o 2;d< was defined as co*erin" only those actions done to"ether that could le"ally be done indi*idually o "o*ernment could thus le"ally ban union hu"e blow for labour mo*ement o they had hoped 2;d< would be interpreted as bein" about unions, since it appeared to mean this internationally

Al+erta La+our 4e)erence part of labour trilo"oy where )ic!son wrote a stron" dissent loo!in" at history and international commitments to which Canada was a party, he found that 2;d< was intended to protect wor!in" Canadians

"elisle v. 'anada L13333M 2 +#C#2# 3@3 )id complete statuturoy e clusion of 2C79 *iolate 2;d< and s# 14G an +229 was set up and controlled by mana"ement

an act e plicitly forbade unioni-ation no, s# 2;d< does not protect the form a "roup can establish o you can%t establish whate*er !ind of "roup you want# o otherwise le"islature would not be able to properly re"ulate labour# No real *iolation here since the 2C79 are "enerally well represented o they ha*e some association that is capable of doin" what a union normally does, despite some room for impro*ment# Court left open the possibility that where a "roup of wor!ers is hi"hly *ulnerable, the ban on or"ani-ation may not be constitutional# )issent found that it did *iolate s 2;d<, and that s# 1 wasn%t met since there were less intrusi*e alternati*es a*ailable# s# 14 o 2C79, etc, are not an /analo"ous/ "rounds#

"un%ore v. ,ntario 5A!7 L2001M E +#C#2N 101D )eals with the e clusion of a"ricultural wor!ers from Bntario%s statutory labour relations re"ime# o ar"ue a *iolation of 2;d< and s# 14 o s# 2;d< since they can%t establish or 6oin a labour "roup, and s# 14 since it was ar"ued that they were denied a statutory protection e tended to most other occupations# Came about in because Bntario%s Conser*ati*es repealed a short,li*ed law that e tended protections to a"ricultural wor!ers# many people didn%t want to allow unions here o *ulnerable family farms may not be able to handle collecti*e bar"ainin" Becomes a bi" political issue#

8nalysis s# 2;d< o freedom of assoication is an indi*idual, not a "roup ri"ht# A 9rinciples of 2;d< proposed by +opin!a o freedom to belon", establsih, maintain association o does not protect acti*ities simply because they are important to a "roup o s# 2;d< protects the e ercise in association of indi*idual ri"hts o s# 2;d< protects the e ercise in association of le"al ri"hts# only first 2 en6oy wide support limitein" 2;d< to indi*idual actions performed in concert would render impossible certain crucial acti*ities which are not protected by the constitution and cannot be understood as lawful, for indi*iduals o in particular, some acti*ites are inconcei*able on the indi*idual le*el, but are nonethteless central to freedom of association# o certain collecti*e acti*ities must be reco"ni-ed if the freedom to form and maintain an association is to ha*e any meanin"# Lon" reco"ni-ed that absent state interference, wor!ers are e posed to unfair labour pracetices and indeed dan"erous conditions# Bntario has many such albout practices# )oes this mean that the state has a positi*e obli"ation to e tend these protections to all wor!ersG

in some cases, e clusion from a protecti*e re"ime may be an affirmati*e state interference with a protected freedom o the "o*ernment is creatin" conditions which in effect interfere wit the e ercise of a ri"ht# o le"islation that is underinclusi*e may in some circumstances impact the e ercise of a consittutional freedom# 9 here is claimin" a ri"ht to for m a union# 9 must show that e clusion from the labour protection act permits a substantial interference with s# 2;d< acti*ity s# 14;1< may re.uiret the state to e tend underinclusi*e le"islation in as much as that le"islation allows pri*ate actors to *iolate basic ri"hts and freedoms# o this is consistent with international law so while typically s# 14;1< will deal with underinclusion, where the impact of the underclusion interferes with 2;d<, the focus may be there in steal# so 2;d< is impacted here, and in rare cases claims for inclusion may be con"i-able under the fundamental freedoms rather than s# 14# 9urpose of the e clusion o 2 says in order to protect family farms from unioni-ation o Court basically accepts that the point here is to protect the family farm# o may be moti*ated by animus, so better simply to loo! at the effect since purpose not clear cut# 9urpose of s# 2;d< o at least in part to reco"ni-e and protect the role of unions in society# Because a"ricultural wor!ers are unable to unioni-e and are otherwise hi"hly disad*anta"e, unli!e the 2C79 in )elisle, they are "uaranteed to "et horrible reults# o politically impotent, no resources to protect themsel*es, *ulnerable to reprisal from employer, unli!e police, can%t turn to Charter directly# Lac! of a"ricultural unions show how much they need protection# ?ffect of ? clusion from the L28 has a chillin" effect on the ability of wor!ers to unioni-e# o e clusion of a"ricultural wor!ers interferes with their freedom to or"ani-e# o messa"e sent by the L28%s e lcusion deli"itimi-es collecti*e beha*ior and ensures its failure# s# 1 o Bb6ecti*e protection of family farm *alid# some e*idence su""ests farms *ulnerable o 2ational Connection unioni-ation may in*ol*e ri"ht to collecti*e bar"ainin", and stri!es may threaten family farm dynamic# formal process of "re*iance may threaten fel ibility, cooperation necessary for family famr# but doesn%t apply to simple association besides, shouldn%t ha*e s# 2;d< *iolated for economic "rounds and wor!ers in other industries protected by the L28 may also ma!e industries more *ulnerable o 7inimum $mpairment# e clusion co*ers practically e*eryone e*en tan"entially connected to a"riculture# cate"orical e clusion does not ma!e sense# dneies protection to e*ery wor!er o

and denies protection to e*ery apect of 2;d< some codes include e emptions only for smaller or family,run farms# protection of the family farm is fine, but you should at least protect a"ricultural wo!ers from bein" retaliated a"ainst for or"ani-in"#

2emedy o stri!in" down the new act would essentially be brin"in" the old one bac! from the dead o so instead, render ineffecti*e the e clusion clause# suspended for 1@ months to allow le"islature to come up with a compromise with does not "i*e a"ri,wor!ers full ri"hts, but still "i*es them some ri"ht of association#

2atio basically where a "roup of wor!ers is hi"hly disad*anta"ed and unable to unioni-e, the "o*ernment cannot e clude them from the normal labour relations act o much li!e *riend, readin" out an e ception that has the effect of discriminatin" a"ainst teh farm wor!ers no ri"ht to bar"ain collecti*ely, 6ust a bare ri"ht to associate and form a unoin distin"uished from )elisle on the basis that the farm wor!ers are hi"hy disad*anta"ed limitin" 2;d< to indi*idual actions performed in concert would render impossible certain crucial acti*ities which are not protected by the constitution and cannot be understood as lawful, for indi*iduals in particular, some acti*ites are inconcei*able on the indi*idual le*el, but are nonethteless central to freedom of association# certain collecti*e acti*ities must be reco"ni-ed if the freedom to form and maintain an association is to ha*e any meanin"#

@ealth Services and Support A Facilities Su+sector Bargaining Assn. v. British 'olu%+ia 2005 +CC 7cLachlin and Lebel 1acts 8ct adopted by the "o*ernment of BC inresponse to health car crisis o health care ta!in" up an increasin"ly lar"e part of the "o*ernment bud"et o /crisis of sustainability/ o collecti*e bar"ain had included a prohibition a"ainst contractin" out bill unilaterally chan"ed wor!in" conditions and restructed labour force to chan"e ser*ice deli*ery o partically no consuation, 6ust a phone call to union mana"ement 20 minutes or so before the act came into force parts of the act chan"e to transfers, contractin" out, status of employees under contractin",out arran"ements, 6ob security pro"rams, and layoffs o so affected how the "o*ernment can or"ani-e their relations how they see fit, and i*alidated important parts of the collecti*e a"reement o also too! some thin"s outside of what could be bar"ained for in the future# result of this was many hospital wor!ers lost their 6obs, or had to wor! for pri*ate employers for less money

8nalysis does the freedom of association "uarantee in s# 2;d< protect collecti*e bar"ainin" ri"htsG o it does protect ri"ht to en"a"e in assocation in collecti*e bar"ainin" o but does not co*er all aspects of collecti*e bar"ainin"# o what is protected is simply the ri"ht of employees to associate in a process of collecti*e action to achie*e wor!place "oals# The reasons for e cludin" collecti*e bar"ainin" from the pur*iew of s# 2;d< deser*e reconsideration o fi*e main resons put forward o collecti*e bar"ainin" is a modern ri"ht created by statute, not a /fundemental freedom/ this fails to reco"ni-e the history of labour relations "o*ernments ha*e historically rec"ni-ed ri"ht to or"ani-e to bar"ain colelcti*ely as important enou"h to protect statues were passed not to create this ri"ht, but rather to protect it it is still funemental o reco"ntion of a ri"ht to bar"ain collecti*ely would be an act of 6udicial acti*ism labour relations should be up to "*oernment, courts shouldn% appeal 6ud"es probably should defer to le"islatures on particular points of labour law but the whole ri"ht to bar"ain collecti*ely shouldn%t be totall outside the pur*iew of 6ud"es this would push defeerence too far o Charter ri"hts should only protect acti*ities performed by indi*iduals and collecti*e bar"ainin" can%t be performed by in*iduals# but )unmore re6ected this# to limit 2;d< to indi*idual acts would render fundamental initiati*e s li!e collecti*e bar"ainin" impossible# o Collecti*e bar"ainin" was not intended to protect the ob6ects or "oals of the association this re.uires us to frame collecti*e bar"ainin" as the purpose of a union, and unions are not entitled to that outcome but it is possible to protect the process of collecti*e bar"ainin" without madantin" protection for th outcomes of that process# 8ll of these rulin"s i"nored the important conte tual differents between !inds of or"ani-ations o unions may ha*e different needs than other associaations so on the whole the old aporach to 2;d< and collecti*e bar"ainin" needs to be reconsidered# Collecti*e bar"ainin" does fall within the scope of section 2;d< o "eneral purpose of 2;d< are consistent with at least some protection of collecti*e bar"ainin"# o The history of Canadian labour history re*eals the fundemental nature of collecti*e bar"ainin" or"ani-ation to bar"ain has lon" been reco"ni-ed as a fundamental Canadian ri"ht which predated the Charter su""ests charter framers intended to included it in 2;d<

three

while the actual ri"ht ot bar"ain collecti*ely may be relati*ely true in the sense of le"al framweor!s and protections, it has lon" been recon"i-ed as a fundemental aspect of Canadian history as society entered industrial a"e, despite the attempts of employers, it became ob*ious that unions and collecti*e bar"aini" were a natural part of a me ied economy that should be accomodated within the framewor! of ri"hts and responsibilties that is the labour law system# basic eras of labour relations law repression law was used as a tool to limit the ability and ri"ht of wor!ers to unioni-e unions considered ille"al in ?n"land for some time o Combinations 8ct o repealed in 1@2A, followed by stri!e, reintroduced a"ain with criminal sanctions a"ainst wor!ers# so freedom to associate was permitted and collecti*e bar"ainin" could be pusued, stri!e actions were mostly ille"al o no effecti*e way to rsesist employers who didn%t want to bar"ain while some of htese thin"s were e*entually repealed, British courts continued to be suspicious of trade unions and used criminal consiracy and other economic torts oto repress unions o while 9arliament responded with le"islation protectin" trade unions not clear whether this repressi*e law was brou"ht into Canada or whether Canada remained more tolerant Tolerance of 0or!ers% Br"ani-ations and Collecti*e Bar"ainin" Toronot newspaper stri!ers led to public concern since criminal char"es were filed Canada adopted T2ade =nions 8ct in order to immuni-e unions from e istin" laws considered to be opposed to the spirit of the liberty of the indi*idual by start of century, main criminal obstacles to unionism had been bro!en down employers could refuse to bar"ain, but wor!ers had the powerful tol of callin" a stri!e to force reco"nition and bar"ainin"# the unrpecendented number of str!es led to the passin" of the Wagner Act model of le"islation# 2econ"ition of Collecti*e Bar"ainin" adoption of a series of statutes to promote collecit*e bar"ainin" o first, tried to ha*e the labour minister impose conciliation on the parties, but didn%t really wor!# +o, 0a"ner 8ct, aimed at o industrial peace, collecti*e bar"ainin", e.uality of bar"ainin" power, free choice, increased consumption to stimulate the econom, and industrial democracy most pro*inces adapted le"islation incorportin" these ob6ecti*es so union now had ri"ht to ha*e their chosen represntati*e treated as a union by their employer o rec"nition no lon"er re.uired stri!in"#

o*er time, 0a"ner act e tended to the public sector# o "o*ernment could still use le"islation to impose unilaterally on their own employees specific conditions ;often wa"es< so while unions be"an formin" in the 1@th century, they were first resisted to by "o*ernment o when thye finally "ot some protection, there was no statutory ri"ht to ne"otiate collecti*ely, and employers could choose to in"ore them o this led to more and more stri!es o this led in turn to the 0a"ner model Collecti*e Bar"ainin" in the 'harter ?ra By the time the Charter was adopted, collecti*e bar"ainin" had a lon" tradition and was reco"ni-ed as part of the ri"ht to associate so collecti*e bar"ainin" has lon" been reco"ni-ed in Canada, and is the most si"nificant collecti*e acti*ity throu"h which freedom of association is e pressed in the labour conte t the concept of freedom of association under s# 2;d< of the Charter includes this notion of a procedural ri"ht to collecti*e bar"ainin" $Nternation law also protects collecti*e bar"ainin" as part of freedom of e pression o *arious =N declarations and $LB documents protect the ri"ht to collecti*e bar"ainin" as part of freedom of association o since intenrational con*entions to which Canada is a party reco"ni-e the ri"ht of members of unions to en"a"e in collecti*e bar"ainin", s# 2;d< of the charter should reco"ni-e at least the same le*el of protection Charter *alues support protectin" a process of Collecti*e Bar"ainin" under s# 2;d< o Charter is aimed and human di"nity, e.uality, liberty, repsect for the person, and enhancement of democracy all are !ey C(arter *alues o the ri"ht to bar"ain collecti*ely with an employer enhances this human di"nity by "i*in" wor!s impact into the wor!place which is a ma6or aspect of their life# o it is the means throu"h whihc employees participate in settin" the terms and conditions of employment o wor!in" conditions are !ey to an indi*iduals self,understandin" +ection 2;d< and the 2i"ht to Bar"ain collecti*ely o so now that the ri"ht to bar"ain collecti*ely is under s# 2;d<, what does htis entail o applies only to state action, includin" the passa"e of le"islation in this case the concern is on le"islation ;the act<, not on an act of "o*ernment# o based on dunmore which held that 2;d< applies to associational acti*itise themsel*es, the constitutional ri"ht to bar"ain collecti*ely concerns ability of the wor!res to "et to"ether to achei*e particular wor!,related ob6ecti*es but does not protect the outcome at all# o employees ha*e the ri"ht to unite, to present demands to employers, and to en"a"e in discussions in an attempt to achie*e these "oals o it protects only /substantial interference/, not any interference ata ll# o as lon" as the effect of the state law or action is enou"h to substantially intefere with the acti*ity of collecti*e bar"ainin", there is a breach of s# 2;d<

it is thus a limited ri"ht no "uaranteed otucome no ri"ht to a particular model of labour relations or a specific bar"ainin" method, 6ust a "eneral process of laboour relations and the interference must be sustnatial to be substantial the intent or effect must seriously undercut the acti*ity of wor!ers 6oin" to"ether to pursue the common "oals of ne"otiatin" wor!place conditions and terms of emloyment with the employer /union brea!in"/ actions clearly meet this re.uirement other thin"s may also be enou"h bad faith, unilateral nullification of ne"otiated terms without consultaion may also undermine collecti*e bar"ainin" conte tual and fact,specific .uestion in e*ery case is whether the prcoess of *oluntary, "ood faith collecti*e bar"ainin" between employees and emplyer has been, or is li!ely to be, si"nificantly and ad*ersely impacted +ubstantial interference in*ol*es 2 in.uiries importance of the matter affect to the process of colecit*e bar"ain" o impact on the capcity of the union members to come to"ether and pursue collecti*e "oals in concert manner in which the measures impact on the collecti*e ri"ht to "ood faith ne"otiation and consulation# both criteria must be met meanin" e*en if the chan"es substantially impact on the ri"ht o fhte unoin to pursue "oals in concert, that wil l be o! if there is still access to "ood faith ne"otiation and consulation# some thin"s may be more or less important to the ability of the union members to pursue shared "oals in concert laws or state actions which pre*ent or deny discussion and consulation about wor!in" conditions are pretty bad, so are laws that unilaterally ne"ate si"nificant ne"otiated terms in the collecti*e a"reement tertiary stuff li!e uniforms, cafeterias, etc interferin" here does not interfere with the capacity of union members to pursue shared "oals# then, if it does impact on sub6ect matter important to collecti*e bar"ain, must as! whether the le"islati*e measurehas respect to the precept of collecti*e bar"ainin", the duty to consult and ne"otiate in "ood faith principle of "ood faithmeans a "enuine and constructi*e process of en"otiation with mutla effects and attempts to reach an a"eement wihout un6ustified delay this is procedural re.uirement that does not dictate the content of any particular a"reement basic re.uirement is to meet and commit time to the process parties ha*e aduty to en"a"e in meanin"ful dialo"ue and they must be willin" to e chan"e and e plain their positions# duty to bar"ain in "ood faith does not re.uire that a bar"ain be struc!, or that any particular pro*isions be accepted and does not preclude hard bar"ainin" but where a party shows hostility toward the process itself, this will be a breach of the dty to bar"ain in "ood faith#

where the aim of the employer is to a*oid a collecti*e a"reement or to destroy the collecti*e bar"ainin" relationship, the duty to bar"ain in "ood faith will be breached o sitautions of e i"ency or ur"ency may affect the content and modalities of the duty to bar"ain in "ood faith )oes the 8ct $nfrin" the 2i"ht to Bar"ain Collecti*ely under s# 2;d<G o two potential areas in*alidatin" the e istin" collecit*e a"reement by ma!in" specific matters impossible to bar"ain on in the future ma!in" the process of collecti*e bar"ainin" meanin"less iwth respect to these terms o T2ansfer and reassin"ment pro*isions/ act ma!es en"otiation in this area impossible so does interfere with future collecti*e bar"ain" o Contractin" out non,clinical ser*ice forbides future protection from contractin" out or re.uirin" consulation before contractin" out repudiates both past collecti*e a"reement and ma!es future bar"ainin in this area meani"less interferes with collecti*e bar"aiin" o Layoffs and bumpin" ma!es bar"ainin in this area meanin"less and in*alidates e istin" bar"ain so does interfere 0as this interference substantial so as to constitute a breachG o more li!ely to be found where measures impact matters central ot the freedom of association of hte wr!ers and the ability of the union to achie*e common "oals by wor!in" in concert o means of impact may affect its impact on the process of collecti*e bar"ainin" and utlitamtely freedom of association $7portance of the pro*isions o deal with limitin" layoffs, contractin" out, seniority o these are all essential ri"hts constitutin" susbtantial interference transfer and reassi"nments pro*isions are relati*ely minor modifications while these issues were ta!en of the bar"ainin" table, this does not meet hte standard of susbtanital interference 9rocess of $Nterference with Collecti*e Bar"ainin" ri"hts o does the 8ct preser*e the process of collecti*e bar"ainin how do the pro*isions affect the process of "ood fiath bar"ainin" and consulation "o*enrment was in asituation of e i"ency *ia bud"etary crises o but the act *irtuall denies the 2;d< ri"ht to "ood faith bar"ainin" and consulation effecti*ely precludes any consulation or discussion on the impacted areas so the le"islation does donsitute a si"nificant interference with the ri"ht to bar"ain cllecti*ely and so *iolates s# 2;d< of the charter +# 1G o Clearly prescribed by law o but not minimally impairin" o

the "o*ernment pro*ided no e*idence that the impairment was minimal inmeetin" the "oal of enhanced mana"ement fle ibility and accoutnability in order to ma!e the health care system sustainable o*er the lon" term act "i*es employers absolute powert o contract out of collecti*e a"reements without need or incenti*e to consult with the union to forbid any clauses on the sub6ect of contractin" out is not minimally impairin" because it cerates a policy of no consulation under any circumstances, it cannot be su""este dtha tthis solution preser*es collecti*e bar"ainin" ri"hts as much as possible# similar for layoff and bumpin" rules, no r.uirement of consulation "o*ernment did not e*en appear to consider less intrusi*e measures, and there were no consulations with the unions# while "o*ernments are not re.uired to consult with affected parties, it may be useful in showin" that the full ran"e of possible options was considered#

2atio Collecti*e bar"ainin" has a lon" history in Canada and is reco"ni-ed in internatioanl a"reements to which we are a party o charter *alues aim at human di"nity, and collecti*e bar"ainin" is party of the way human di"nity can be e ercised in the wor!place o part of e pression of self is participatin" in wor!place decisions Collecti*e bar"ainin" thus falls into 2;d< o but it is purely a procedural ri"ht only a ri"ht to unite, present and ad*ocate for the position, but no "uarantee on outcome only *iolated where there is substantial interference with this ri"ht o must show impact on the ri"ht of the wor!ers to unit and wor! on common "oal o and impact on the duty to consult and the duty to ne"otiate in "ood faith# interference with the duty to consult and the duty to ne"otiate in "ood faith and can be limited *ia s# 1 often read merely as creatin" a duty to consult reread if $ ha*e time#

#he Aftermath of %C -ealth $er&ices Fraser v. ,ntario 5A!7 200@ BNt 8"riculural ?mployees 9rotection act *ioated s# 2;d< ri"hts of a"ricultural wo!ers o BNC8, without a statutory duty to bar"ainin in "ood fiath, there could be no meaninful collecti*e bar"ainin" process +CC reser*ed 6ud"ment, but "o*ernment has started puttin" to"ether le"islation to create a new collecti*e bar"ainin" re"ime for these wor!ers#

;ounted *olice Assn. o) ,ntario v. 'anada 5A!7 3==0 Bnt# +#C#># 1acts s# 3D of the 2C79 re"# ulations established a seperate employee relations scheme for 2C79 members Court here finds this *iolates s# 2;d< and cannot be sa*ed under s# 1 since there was no pro*ision for a constitutionally ade.uate process of collecti*e bar"ainin"

8Nalysis, 7c)onnell > 2C79 members ha*e a constitutional ri"ht to form an independent association for labour relations purposes free of mana"ement interference or influence o any attempt to interfere would infrin"e s# 2;d< of the Charter o must also ha*e ne"otiations made in "ood faith ) accepts taht 2C79 members ha*e ari"ht to colecti*e bar"ainin", but that there is already an ade.uate form of this in the +2229 process $s the +229 an independent associationG o ri"ht to associate means the fredom to form a "enuine empoyee assocaition that the mana"ement does not control o +229 created in response to attempt to unioini-e o ne*er intended to be an employees association, but rather to pre*ent a "enuine employees assocaition o there ha*e been chan"es since, but you the +229 cannot realistically be considered to ha*e chan"ed from a man"ement tool aimed at pre*entin" unioni-ation into an independent association create for the purpose of collecti*e bar"ainin"# o employees themsel*es ha*e ne*er chosen to be represented by the +229 a"reein" to select the members who will be on the +22 is not the same as choosin" to conduct labour relations throu"h an association of the members% own ma!in" 0hile +229 may ha*e some capcity to bar"ain collecti*ely, the mana"ement%s refusal to deal with any other or"ani-ation re*eals it%s anti,union purpose and rootes )oes the +229 pro*ide a process of collecti*e bar"ainin" o ) ar"ues that there is no ri"ht to a particular bar"ainin" method o 2C79 needs special !ind of collecti*e bar"ainin" o 2C79 model has ad*anced wor!er outcomes, has pro*ided 6ustice and "air "rei*ances, and has helped de*elop a positi*e wor!place culture o but e*en if 7an"ement does listen to +229, +229 is simply "i*in" recommendations the final desicion rests entirely with mana"ement o +229 itself does not belie*e it is in a process of bar"ainin", and reports re*eal that +229 is basically part of the or"ani-ation chain of command close to mana"ement cannot be both a tool of mana"ement and representati*e of wro!ers o collecti*e bar"anin" means more that simply ma!in" recommndation in 1raser *# Bntario, the court found the ri"ht to bar"ain collecti*ely entials more than a ri"ht to ma!e resprsentations while 2C79 mana"ement may be listenin" carefully to +229, it is still 6ust hearin" recommendations +o +229 completely preculdes the ri"ht to bar"ain collecti*ely

there is now a blil that will "i*e a separate collecti*e bar"ainin" re"ime to police men#

2atio the ri"ht to bar"ain collecti*ely includes more than the ri"ht to simply ma!e representations a consulatati*e body formed by mana"ement is not "oin" to be enou"h to count as true representation, e*en if employees help elect that body, especially where the employees ha*e been "i*en no choice as to alternate representation

'B*$ v. New Brunswick L2003M NB OB 1acts =nion challen"ed pro*isions in the labour relations act that e cluded /casual/ wor!ers from definition of employee, and thus made them ineli"i"ble to bar"ain" e pert e*idence showed that casual and part,0time labour mar!et is "rowin", predominantly women o many full,time wor!ers in hospitals, includin" most nurses under the a"e of 24, were des"intated /Casual/ o lower befnefits, no 6ob security e*idence from employees at li.uor store o wo!erd on a*era"e E4,A0 hours per wee!, bt still causual wo!rers no holidays, *acation, sic! days or "uaranteed hours o re.uired to ta!e 2 wee!s of e*ery si months to ensure no /employee/ status e*idence from Teach 8ssistant o ma!in" minimum wa"e o on call o mo*in" from school to school o casual wo!rers made to compete with one another ?mployee in finace department of hostpiral o 1E years as a causal employee, no benefits, summarily dismissed Casual labourer with department of transportation o says political connections re.uired to "et this !ind of wor! o no benefits, health care, etc#

8nalysis 2;d< breach found does ecludin" casual/temporary wor!ers contribute to the *iolation of protected freedomsG )oes the le"islation ha*e, either in purpose or in effect, interefere with s# 2;d< 9ro*ince has used the /Casusal/ desi"nation to interfere with ri"hts by crea.tin" a sub,class of wor!ers o unions try and or"ani-e these people &o*ernmetn has sub6ected /Casuals/ to unfair practices, and this is a disad*anta"ed "roup o thus there is a positi*e obli"ation on "o*ernment to e tend protecti*e le"islation to these unprotected "roups

e cludin" causuals from the protection of the Labour 8ct infrin"es their ri"h under 2;d<

2atio another case where the "o*ernment is usin" a le"islati*e e clusion to dama"e the ri"hts of wor!ers that bei"n the case, the le"islation had to read in an obli"ation to protect this "roup# o e clusion of the disad*anta"ed "roup from the Labour act infrin"ed their 2;d< ri"hts

$tatus .nder Collecti&e %argaining Legislation: Introduction only employyes are capable of collecti*e bar"ainin", but the nature of /employee/ is in flu o ie, increasin" numbers of contracts, consultants, etc# +ome employess le"ally unable to bar"ain collecti*ely, often professionals, a"rticulturtal wor!ers etc 7ana"ement ;and those with si"nificant mana"ement capacity< are unable to bar"ain collecti*ely# 7ay be difficult to conclude who the le"al employer is, due to confusin" corporate structures, restructurin", outsorucin", and so on# ?mployee or"ani-ations may ta!e all !inds of forms, but in order to count as union must be forme for the purposes of representin" the wor!ers *is,a,*is the employer# sometimes those refused bar"ainin" ri"hts are ta!en ad*anta"e of, but sometimes e*en when "i*en ri"hts they ha*e difficulty usin" them due to their disad*anta"ed positions# o others who are barely employees at all ;li!e )rs#< ha*e mana"ed to lobby for si"nificant benefits and ri"hts# Bld assumptions of *ertically inte"rated blue collar companies no lon"er ma!e much sense 0hat is to be done with the secondary labour mar!etG o part,time, causal wor!ers o may hold se*eral 6obs# may be time to consider industry le*el bar"aini"n rather than employer bar"ainin", since the employers are increasin"ly "ettin" small and speciali-ed# by focusin" on nature of employment, may be missin" the point o some small,business people may be at the mercfy of a sin"le pro*ider of supplies, but ha*e no access to bar"ainin" o other "roups, li!e doctors and lawyers, ha*e no firm employer but are able to brin" a lot of pressure on their /employers/# 7ana"ement e clusion may be o*erbroad, when we consider the inclusi*e participatory approach to mana"ement# 8s unions ta!e "reater ownership and role in the companies they wor! in, the old arms,len"th, ad*erserial approach may be outdated#

National La+our 4elations Board v. @earst *u+lications &nc. $ssure: 0hether newsboys were employees

8nalysis no easy test to determine whether someone is or isn%t an employee# must loo! to purpose of 0a"ner 8ct in ordre to define# ?mployee broader than old common law /ser*ant/, but not meant to include e*eryone who performed a ser*ice# The problems the 0a"ner 8ct sou"ht to addressed are not solely present in the traditional employment relationship# o ine.uality of bar"ainin" power may be found in contractors wor!s as well as employees o stri!es from contractors could be 6ust as bad# +ince newsboys face the same !inds of problems and wor! in the same conditiosn, they should be con*ered by the 8ct o they are super*ised and their hours and effots are perscreibed by the employer o most of their e.uipment owned by the publisher# o etc#

2atio: in order to determine whether someone is an employee, must loo! to purpose of the Labour 2elations 8ct if they are in the same !ind of position *is,a,*is employer as a tradtional employee would be, most li!ely the L28 will apply# o loo! at who sets hours, pro*ides supplies, and whether there is economic dependence#

!epedent Contractors $n Canada, the /fourfold/ test is used to distin"uish between contractors and employees o control of the relationship o ownership of the tools o chance of profit o ris! of loss (owe*er, some contractors are nonetheless dependent# +ome statutes set out that notwithstandin" the fourfold factors, a person who is wor!in" for compensation on such terms that they are economically dependent on the employer may be found to be an employee# $n BC, statute tends to !eep dependent contractors and re"ular employees in same unit, while in Bntario they tend to be in different ones# )ependent wor!ers do ha*e the ability to or"ani-e and bar"ain collecti*ely

Winnipeg Free *ress v. ;edia Bnion o) ;anito+a ;1333< ;7anitoba Labour Board< $ssue: o whether nespaper carriers were employees

8nalysis

2atio:

9aper lar"e, chan"ed to mornin" deli*ery so no lon"er newboys but rather normal employees o must appear at a certain time, with a car, to deli*er papers o paid by paper P milea"e# o 2oute si-es determined by employer o ?mployer sets many conditions of employment# o 7ana"ement will find replacement if wor!er sic!, but would reduce the re"ular carreir%s compensation# o Carrier compensation reduced if client wouldn%t pay o district mana"ers could hire, fire, permit absences, ne"otiate rout allowance, warn employees, correct performance# made decision as to hirin", "a*e bonuses# 1our factors test, but the si"nificant factors is the nature and de"ree of detailed control o*er the person alled"ed to be an employee o natuer of tas! o freedom of action o ri"ht to perscribe e act wor! or how the wor! is done o etc# 7anitoba has definition of dependent contractor o someone who owns a *ehicle who uses it for wor!, is not an employee but is under contract, and is entitled to deduct money remainin" after performance from the amount he is paid# 8t the end of the day the board is to consdier whether the relationship more closely resembles one of employment rather than contractin"# ? panded the A crtierion to 11 o use of or ri"ht to use substitute o ownership of tools o entrepenuerial acti*ity o sellin" of ser*ices to mar!et rather than indi*idual employer o economic mobility/independence ;ability to re6ect wor! one doesn%t want< o e*idence of *ariation in fees char"ed o whether the indi*idual is carryin" on a independent business o de"ree of speciali-ation/s!ill o control of manner and means of wor! o amount of payment o whether terms of ser*ice similar to terms of employment# But the !ey consideration remains the control o*er the wor! and the manner itn which it is performed o here there is a hi"h de"ree of control o notwithstandin" use of own car, which is a common term of normal employment, 7&7T controls the manner and nature of wor!# o little scope for entrepneurial profit, some dan"er of ris! if the car brea!s down# o terms of deli*ery strict and set out# o susbtitution possible, but 7&7T also plays role here# o 7&7T sets out routes, etc o little opportunity for deli*ery people to ne"otiate rates so on whole, they are more li!e employees

critican concerns are de"ree of control o*er the wor! and the *ulnerability of the employee consider:

use of or ri"ht to use substitute ownership of tools entrepenuerial acti*ity sellin" of ser*ices to mar!et rather than indi*idual employer economic mobility/independence ;ability to re6ect wor! one doesn%t want< e*idence of *ariation in fees char"ed whether the indi*idual is carryin" on a independent business de"ree of speciali-ation/s!ill control of manner and means of wor! amount of payment whether terms of ser*ice similar to terms of employment#

Fownes 'onstruction 'o%pany L135EAM BCL2B ?mployee who owns se*eral truc!s and employs another dri*er to operate one of them may remain a dependent employee an indi*idual may be both employer and employee owner operators may be sube6ct to same pressure as other employees#

"ear/Employees +tudent nurses, medical residents, articlin" law students, etc# o may ha*e acess to bar"ainin" where the relationship resembles a tradtional employment# $n Bntario, people recei*in" wor!,fare are e plicitly e cluded#

Managerial Employees Trade =nions often prefer arms,len"th distance between 7&7T and union# Typically a bri"ht line is drawn, but not always that clear we are tryin" to a*oid a conflict of interest BC also reco"ni-es a third cate"ory of /super*isors/

'hildrenCs Aid Society o) ,ttawaA'arleton L2001M B#L#2#) $ssue whether certain employees described as /super*isors/ could form part of the bar"ainin" unit#

8nalysis:

super*isors front,line of mana"ement, super*ise the bar"ainin" unit employees directly o 6ob description emphasi-es super*isorial role o ta!e a course in interacti*e mana"ement, hired specifically for mana"ement capacity do performance re*iews play role in hirin" *ia inter*iewin" panels help determine whether probationary employees will be !ep on carry out performance and attendance re*iews play role in counsellin" and disciplinin" employees o formal discipline more li!ely to come from further up# role in decision ma!in", "rei*ance procedure# since employer resistin" certification, must establish, on Bo9 that the super*isors are 7&7T and not part of bar"ainin" unit# /Thunder Bay/ re.uires arms,len"ht distance between sides to a*oid conflictin" interests on the shop floor# 1ord Case dealt with foremen o foremen could persuade wor!ers to act a"ainst interest# 0hether someone is a mana"er "oes to the .uestion to which the /mana"erial employee/ ma!es decisions which affect the economic li*e of their fellow employees, raisin" a possible conflict of interest# 1actors from BC Case o discipline/dischar"e o labour relations input o hirin", promotion, demotion# The si-e of the business may be rele*ant o in lar"e business, more li!elihood of hierachical approach, but in small business all m"mt li!ely done by one or two employees# New /flat/ mana"erial structures pre*alent in cooperati*e, professional wor!places may ma!e it hard to distin"uish, paticularly where there are colle"ial modes of decision ma!in", and performance mana"ement throu"h counsellin"# here wor!place non,traditional, aimed at /interacti*e mana"ement/ rather than confrontational# howe*er, super*isors nonetheless e ercise a mana"erial role o play role in hirin" and promotion, e*en thou"h final decision made by consensus rather than a sin"le ultimate authority o complete control o*er preformance re*iew process o super*isors are the eyes and ears of 7&7T *is,a,*is disciopline# o super*isors en"a"ed full,time in super*isory wor! and do not share the duties of the bar"ainin" unit# 9lacin" super*isors into a sepearte bar"ainin" unit won%t help, since the conflict of interest will still remain# o plus the employer has a reasonable e pectation that its man"ement team will be undi*ided in its loyalty#

2atio: Basically, it seems li!e the de"ree to which the super*isors en"a"e in typically mana"ement actii*ties will determine whether they can count as employees o discipline/dischar"e

o labour relations input o hirin", promotion, demotion if an employee is determined to be part of mana"ement, won%t be allowed to unioni-e for fear of conflict of interest#

#he .nion as an +rgani0ation +tatutory defintion typically broad, /any or"ani-ation of employees that aim to re"ulate the relations between employees and employer/ labour board ha*e found for e cept for stiuations in*ol*in" discrimination, labour boards do not ha*e the authority to deny reco"ntion to otherwise bonafide or"ani-ations 6ust because they do not follow democractic forms and practices#

Bnited Steelworkers o) A%erica v. <u+ota ;etal 'orporation Fhara%et "ivision L1334M BL2B 9 wanted to unioni-e wor!place, ) says there is already an ?mployee%s association committee which ne"otiates with mana"ement#

$ssue $s an informal body that ne"otiates with the employer sufficient to count as a union for the purposes of representin" the employeesG

8nalysis L28 re.uires that union be an indepedent a"ent of the employees# o important since once unioni-ed, wor!ers cannot represent sel*es to mana"ement# 9ree istin" committee lon"standin" but of dubious ori"in# o may ha*e been created by employer a"reement sets out terms and conditions of employment, "rei*ance procedure, etc# o does not purport to ma!e Committee e clusi*e bar"ainin" a"ent, nor is there a /no stri!e/ clause# o Committee self,selectin", not elected 7onthly meetin"s with mana"ement, deal with production information, profitability, producti*ity o no "eneral employee meetin"s to discuss interests/problems# o no constitution, no bylaws, no fees paid or financial status or assets# o propsals that become part of employment contract are ratified indi*idually# Comittee wholly dependent on mana"ement L28 doesn%t set out form of =nion, but allows inferences to necessary characteristics of the union o must ha*e constitution with purpose of union and procedure for election o must be a meetin", to admit people into membership and ratified constitution o officers should be elected# this web fo contractual realtionships is fundamental to the union# +o =nion will ha*e constitution or by,laws that ha*e been reduced to writin"# Committee has no constitution, assets, or employee members, and is to informal to be a union#

2atio: union must be elected, must ha*e constitution, must ha*e constitution reduced to writin" must be for purpose of representin" wor!ers w/r/t the employer#

!raha% 'a+le v. 'a+le Television Workers Association ;13@5< N+ L2B2 association held not to be a union because its true aim was not to re"ulate employer/employee relations but merely to "et the incumbent union out#

Employer Influence 7&7T interference with unions iprohibited by law o mana"ement may not 6oin union o mana"ement dominated institutions may not be certified as union# 'hildrenCs Aid Society o) ;etropolitan Toronto o if you hold a certification *ote, and it turns out that some of the *oters were part of mana"ement but weren%t actin" at mana"ement%s biddin", that does%t dis.ualify the association from certification if they are thereafter rendered inelli"ble for membership and e pelled#

1ro&ing an Illicit Moti&e pro*in" an illict moti*e is necessary for some unfair labour pratices o ie dismissin" an employee because of union membershi in some 6usridictions, the employer has the burden of pro*in" an absence of animus

.nfair Labour 1ractices during +rgani0ation the employer has an inceti*e to try and derail certification because unioni-ation will cost money and cut into profits labour le"islation see!s to a*oid this by prohbitin" unfair labour practices most commonly occur durin" or"ani-ation, because this is the employers best chance to derail the union entirely BC Labour 2elations Code o D;E< it is an unfair labour practice to discriminate or ta!e action a"ainst or"ani-in" employees o D;A< "i*es employers an addtional protection where employee status can be chan"ed for proper cause or where reasonably necessary for the proper conduct of business Board may order reinstatement or dama"es, or may immediately certify union where a decision is moti*ated e*en in part by animus, this is an unfair labour practice o burden on employer to dispro*e animus

"uchesnau v. 'onseil de la Nation @uronneAWendat L1333M C$2B No#1 ;Canada $ndustrial 2elations Board< 1acts 9 dismessed from lon" time employment he says it is due to animus, the employer calims it is from wor!place misconduct, amountin" to fraud o but 9 was ac.uitted at a preliminary hearin" of all criminal char"es

8nalysis code pro*ides that wor!ers ha*e ri"ht to select bar"ainin" a"ent durin" or"ani-ation dri*e, board is particularly careful to protect employee ri"hts and will ensure no employer animus e*en if there is a prete t to fire, anti,union animus, e*en if 6ust incidental, that will be an unfair labour practice# ?mployer bears burden of proof to rebut presumptino of anit,union animus# Board to determine whether animus palyed any part at all in the dismissal# Bn a Bo9 in this case, the board found that it unprobable that the 9%s union acti*ities had nothin" to do with the termination# +o while 9%s beha*ior .uestionable, the employer could not pro*e that it%s dismissal was not pro*o!ed in part by anti,union animus

2atio: durin" or"ani-ation period, there is a presumption of anti,union animus that the employer must be able to rebut on a Bo9 e*en if there is a prete t to fire and the animus plays only an incidental role, dismissal will still be an unfair labour practice#

2)3* discussion problem shows that /proper cause/ pro*ision has some teeth where you ha*e a clear procedure applied in a non,discriminatory fashion, this may be enou"h to dischar"e the presumption of anti,union animus o basically where the termination occurs with acceptable procedural fairness, 4;A< may protect#

"on/Moti&e .nfair Labour 1ractices some statutes uclear as to whether moti*e plays a role if not, the section may outlaw any employer action that has a chillin" effect on a union# BC D;1< ma!es it unfair to interfere with the administration or formation of a trade union o does not e plicitly re.uire animus o because it is so broad, it has the potential to swallow up all the other labour pro*isions

typically what is re.uired is that there be a findin" of no anius, and then a balancin" decision between the interests of the union and the business purposes

'anadian *aperworkers Bnion v. &nternational Wallcoverings, L13@EM BL2B ?mployer !ept company "oin" by usin" stri!e brea!ers union learned about stri!ebrea!ers, confronted them some members fired o some of these members assaulted scabs, dama"ed *ehicle, etc o some were found not to ha*e e*en been there at all#

8nalysis ss# DD and 50 prohbiti certain anti,union acts when there is animus DA prohibits acts, but there is no e press re.uirement of animus o if this is the case, how can DA be interpreted such that it does not ma!e ss# DD and 50 obsoleteG +ome cases ha*e read into the section somethin" that says /where only incidentally affects a trade union/# o so where business decision not inconsistent with the shceme, would be permitted# other cases ha*e simply read in a moti*e re.uirement# o if employers conduct simply affects the trade union, with no animus, o! o employer must 6ustiffy conduct with credible business purpose# Both approaches in*ol*e balancin", considerin" the scheme of the act, and without direct e*idence of moti*e, both re.uire a si"nificant impact on the union before a *iolation will be established# +o basically in the absence of animus, the courts will only find an infrin"ement where the imbalance of interests in fa*our of the protected acti*ity is si"nificant# o thus what is contemplated under s# DA are acti*ites where are done in "ood faith, but ha*e a si"nificant impact on the union and do not reflect a persuasi*e or worthy business purpose# application to facts o ?mployer claims all were dismissed for the unlawful assault, not the stri!e# there is no e*idence of actual animus thus those who actually did en"a"e in an assault cannot ha*e recourse to s# DA, since this is a persuasi*e business prupose# /"i*en the circumstnaces, the decision to dischar"e was not clearly e cessi*e and by itself a hallmar! of anti,union animus/# non,moti*e approach should be reser*ed for clear mista!e or totally disproportionate response# o employees who were only present but did not assault were also dismissed board concludes termination was out of a feelin" from mana"ement that the union can no ri"ht to be there, but of course they did so find a breach of s# DD, due to animus#

2atio

the approach ta!en where there is no re.uirement of animus in this case is that the board will only find an infrin"ement where the imbalance of interests in fa*our of the protected acti*ity is si"nificant o basically if the employer can show "ood faith ;no animus<, and proportional response/worthy business purpose, no infrin"ement will be found#

Westinghouse 'anada Ltd. L13@0M B#L#2#B# employer deliberately mo*ed plants to new area# $n some situations, this would be o!, where the mo*e is "enuinely moti*ated by business concerns due to an economic crisis (ere there was no e*idence that the company tried to wor! with labour, so clealry moti*ated by animus and the mo*e was not BK# howe*er, probably .uite specific, as the employer was actin" fairly e"re"ious o here mana"ement basically lied to union and shut down the plant, rather than attemptin" to ne"otiate 2emedy for plant closure difficult, since can%t order reopenin" o perhaps certify the new plants, or "i*e the unioni-ed employees dibs o*er those 6obs#

<ennedy Lodge Nursing @o%e ;13@0< BL2B employer contracted out all house!eepin" and 6anitorial functions, layin" off union in process o stated intent was to sa*e money# Board found that since action ta!en not moti*ated by animus, this was BK# unli!e 0estin"house, there was no anti,union animus, only desire to sa*e money# Brian Lan"ille in /?.ual 9artnership in Canadian Labour Law/ .uestions this, isnce after all the whole reason to a*oid collecti*e bar"ainin" is to sa*e money# Contractin" out to a*oid the whole intent of collecti*e bar"anin" should be *iewed as animus# )esire to sa*e money is not the same as anti,unoin animus# basically, the employer has the ri"ht to set the conditions of employment as lon" as not a"ainst the bar"ain, and as lon" as not moti*ted by animus or4ing Conditions: #he $tatutory Free0e

Alteration of

no unlitaral chan"es to the wo!rin" conditinos durin" the certication and bar"ainin" processes# 92e,certification free-e be"ins when certificate is filed, and ends when application dismissed or certificate issued# then bar"ainin" free-e !ic!s in and substists until there is a le"al stri!e/loc!out position# 9oint is to a*oid employers from underminin" union o this means e*en bona fide business decisions may be ille"al durin" the free-e period# o e*en doin" thin"s that are in the fa*our of wor!ers may lead to an unfair business practice don%t want bribes or punishments# 'anadian &%perial Bank o) 'o%%erce

durin" free-e period, Ban! "a*e raise to all non,or"ani-in" branches but not branch that was or"ani-in"# o Board applied /busniess as before/ test and found an unfair business practice# o shcheduled pay raises must continue as before BC allows some chan"es in conditions o employer can apply to board to ha*e conditions of employment chan"ed, e*en durin" the free-e o board may allow these chan"es if /business as usual/ and /business as before/ perhaps based on resaonable e pectations of partiesG o

Si%psons Li%ited v. 'anadian Bnion o) Brewery, Flour... ;13@4< N#+# L2B2 ?mployer department store, in some difficulty# union recently certified# >ust prior to notice to bar"ain, employer made bi" lay offs across the wor!force, includin" in certified unit# o some of the wor! that was laid off was replaced by contractors# Board accepted that the layoffs were done without anti,union animus# But bar"ainin" free-e meant /business as before/ was supposed to !eep "oin" o this is a hard test thou"h# Typcially first time e*ents are re6ected by the board o howe*er, sometimes layoffs are o! durin" the free-e, e*en where that was the first instance of lay offs# &oes to reasonable e pectations model instead o what would a reasonable employee e pect to constitute his or her pri*ile"es in the specific circumstances of that employerG o it may be reasonable for employees to e pect an employer to respond to a s"inficant downturn in buseiness with layoffs, e*en if this is the first round of layoffs# o of course, se*erity and e tent of layoffs must be proportionate to the se*erity of the economic circumstances# o 7ust be an absence of animus# +o layoffs o! but would a reasonable employee e pect a downturn to be met with layoffs, then ha*e those layoffs replaced with contract wor!ersG o durin" the free-e, the employers abliity to contract out is limited# =ltimately the board found that the lay offs were o!, but that the contractin" out was not, because /the introduction of a new means to continue to ha*e the wor! performed/ aws outside the employees% reasonable e pectationsG

,ntario *u+lic Service $%ployees Bnion v. 4oyal ,ttawa 'are !roup (ospital reduced benefits durin" bar"ainin" free-e# hospital says it was actin" in response to serious bud"etary pressures# o reducin" sa*in"s without impairin" other benefits or patient care#

8nalysis free-e captures bonafide actions that may nonetheless undermine or"ani-ation#

aim is to facilitate bar"ainin", not protect employees from persecution /business as usual/ model is flawed, since ob*iously when unioni-ation occurs, the business must chan"e# o indeed, if business continue to act unilaterally as it did before, it would *iolate the process# reasonable e pectation not much help, since no easy way to determine how reasonable employee e pectations may be ascertained# o besides, "i*en the or"ani-in" employees should reasonably e pect that these !inds of decisions will be the product of bar"ainin"# Board mo*es to a third approach, that reads the free-e pro*isions in li"ht of the need to bolster the bar"ainin" process, reinforce the status of the unioin as bar"ainin" a"ent, and pro*ide a firm ;if temporary< startin" point for the collecti*e bar"ain

National La+or 4elations Board v. $Dchange *arts 'o., ;13DA<, =+8 =+8 =+8 2atio: new benefits are also inappropriate durin" the statutory free-e# basically boils down to chan"es that benefit the employees are also not allowed# /)an"er of a fist inside the *el*et "lo*e/# employees will assume that what can be "i*en can be ta!en away###

.nioni0ation and

al/Mart in Canada

*lourde v. WalA;art 'anada 'orp. L2003M +CC 1acts ) closed its store durin" ne"otiations with union o*er a first collecti*e "eement 9 ar"ued that when 0al,7art closed the store and he lost his 6ob, this should be understood as dismisal moti*ated by anti,union animus trbinual and lower courts said that 0al,7art had permanently closed the store, so it doesn%t matter what the moti*ations were o can%t order reinstatement, and can%t order 0al,7art to reopen the store +CC rule D:E in fa*our of 0alQmart o Binnie said that 14,15, which deal with dismissal for union acti*ity, could not apply where the employer had permanently close the business, but that compensatio ncould be a*ailable to the union undEer s# 12,1A if the union could pro*e animus

8nalysis Binnie s# 14 , 15 set out a remedy for someone who is dismissed, suspended, etc for e ercisin" ri"hts undre the code o but in order to reinstate someoen into their position, that position must still e ist o remedy is to put the preson bac! in their 6ob and pay them lost slaryfor th eperiod between the time of dismissal and that of the order, minus any money made by the employee at other 6os

also may contain an order to the employer to stop practicisin" discrimination and to cancel the sanction so this is limited to a situation of an on"oin" business rather than a free,standin" power to award dama"es a"ainst employer# "eneral relief is dealt with under ss# 12 to 1A thre is no duty for an employer to !eep operatin" their business o so section 14 is not applicable where the wor!place is closed a real and definiti*e wor!place closure is a complete answer to any attempt to in*o!e the s# 15 presumption the firin" of a sin"le employee may warrant hi"her scruitny to ensure there was a "ood reason to fire the employee en"a"in" in protected acti*ity, but this doesn%t aply whre the whole wor!place is closed o in theat case the reason for termination is simply that there 6obs no lon"er e ist o the reason the 6obs are "one is not a matter for a s# 14 application o a closure is a closure, and reinstatement is impossible# s# 14,15 create a presumption that an employee is able to easily raise when fired durin" union in*ol*ment o difficult to rebut, and is dealt with in a summary way o employer may not e*en ha*e a mi ed moti*e o wheree*er there is a taint of animus, .uite easy for employee to pro*e animus o the lei"islature did not create this presumptio in the case of plant closures case law indicates that there is no positi*e obli"ation that the employer !eep its plants open o but it does not immuni-e the employer entirely o the colsure may itself be an unfair labour practice, but the remedy will be found under ss# 12,1A instead of s# 14 o

)issent, 8bella s# 14 can apply for mass dismissals arisin" as a result of the closure of a business for anti,union animus City pontiac buic! case has meat that ther is no remdy for a "enuine plant closure, e*en where moti*ated by anti unio nanimus whole point of ss# 14,13 was to pro*ide acces to ci*il remedies for anti,uinion conduct, and to e*en this playin" field *ia presumption ins# 15 )epri*in" employess to access this remedy when their plants ha*e closed denies their ri"hts 6ust when they are the most needed# o dismissed employees are entitled to tha*e their dismissals scruitini-ed for anti,union moti*es, no matter the reason they were dismissed closin" a business is a form of dismissal, and the only form of dismissal immuni-ed from scruitiny for anti,union animus City Buic! openly closed in order to a*oid unioni-ation o 6ud"e concluded that closin" a business is a "ood and sufficient reason which rebuts the presumption o no obli"ation to remain open o closin" is always a "ood and sufficient reason for employee dismissals, and it doesn%t matter whether it is moti*ated by animus

$t%s tautolo"ical to conclude that closin" a business is a "ood enou"h reason for closin" a business o seems weird that you can scrutini-e where one employee fired, but not where all employees fired Closin" a business can be the morst se*ere form of reprisal for union acti*ity, and so shouldn%t be imune# City buic! was thus an anlomaly and should be left behind# $Nconsitent with the le"islature to scrutini-e only whether or not the business is /actual/authentically/ close rather than the purposes behind that closin" o shouldn%t interpret these pro*isions differently in the conte t of a lant closin" otherwise you will strip employees of their ri"hts in the most dramatic possible conte t# Labour borads ha*e tended to find that a decision tainted by anti,union animus, wehter it is a closin" or a different action, is a *iolation of labour ri"hts 0hile pro*inces may ma!e their own 6ruisprudence and le"islation, here City Buic! is totally at odds with the rest of Ouebecois 6urisprudence ma6ority focused on 12,1A o 12,1A are a*ailable, but 14,15 are intended to be a*ialable in addition to this in order to reflect the reality of the informational and power imbalance between the emplooyer and the union;s<

2atio under Ouebec%s e.ui*alent of D;E<, a permanently authentic closure, no matter what its moti*ated for, will not allow a remedy# o cannot order store reopened, etc# o closin" a store is always a *alid reason to terminate )issent o doesn%t thin! it is somehow better if employer terminates e*eryone rather than 6ust a few effect is to "i*e employer the ad*anta"e when it is actin" most e"re"iously#

Employer $peech )urin" or"ani-ation, employer often wants to persuade employees not to opt for unioni-ation National La+our 4elations Board v. Feder+ush 'o. 13A1 =+8 =+8 =+8 o free speech is not absolute, and can be limited at times o speech can connote power relationships o employer speech can be both e pression and coercion o speech which from the outside seems fine may ha*e a connotation of threat, and can be limited $n some parts of Canada employer has the ri"ht to free speech, pro*idin" it must not use threats, promises, or undue influence#

Bnited Steelworkers o) A%erica v. Wal%art 'anada L1335M BL2B 1acts

basically mana"ement can*assed or"ani-in" employees for .uestions, but would not answer .uestions about whether the store would close also allowed anti,union employee to spea! durin" mandatory meetin", but would not let pro,union employee spea! since customers were arri*in"#

8nalysis speech from anti,union employee problematic o company did not distance itself from her speech, statin" that it was not reflecti*e of the employer%s position o particularly important because she had said 6ob security would be in .uestion if the store unioni-ed# +ilence may ha*e been a implied statement that this was so o by lettin" her spea! at an official meetin", without distancin" itself from her remar!s or allwoin" a pro,union response, this had the effect of intimindatin" or influencin" employees o 8n employer simply cannot allow an employee to ma!e a speech containin" the subtle threats to 6ob security at an official, mana"ement run meetin", fail to clarify, then refuse to let the union spea!# )aily meetins and circulation of 7&7T reps sent a messa"e that the company was stron"ly a"ainst the union o employers can%t hide behind open door policies when the effect of this is to intimidate the employees# 7ust consider the effect of 0al7art%s open policy in refusin" to answer .uestions as to store closure# o failure to answer "o around the store# 0here employer solicits .uestions, it must naswer them o if you can%t answer .uestions, don%t solicit them# ?mployer !new chillin" effect of silence on union, but continued to solicit .uestions# o clearly employer can%t say the store will close, but it could ha*e assured the unoin the store wouldn%t close

2atio failure to answer .uestions may constitute a threat o so solicitin" .uestions then refusin" to answer about a closure is a *ery ris!iy practice employer needs to be careful about allowin" anit,union speech, not not pro,union speech remedy here was automatic certification o this remains a remedy in BC o but in Bntario, this remedy was remo*ed in this case, once certified 0almart 6ust du",in and refused to conclude bar"ainin" o e*entually since no pro"ress was bein" made and some of the or"ani-ers mo*ed on, the union was decertified

Employer Free $peech Clause BC has a clause that allows the employer to e press itself on any topic as lon" as it doesn%t intimidate

this includes the ri"ht to e press your opinion on unioni-ation as lon" as you aren%t coerci*e or intimidatin" o althou"h, one mi"ht wonder whether anti,union speech from employer isn%t inherently coerci*e# BC allows pretty broad anti,union employer speech o Bntario restricts the speech to facts

$olicitation on Employer 1roprety The typical wor!place is on property owned by the the employer must balance ri"ht to act collecti*ely with traditional property ri"hts# so while employer may put some restrictions for safety and security, and can limit or"ani-in" to non,wor! hours and areas, cannot ban it alto"ether#

'anada *ost 'orporation ;1334< Canadian $ndustrial 2elations Board 1acts union2 represented employees in wor!place 8 o wanted into wor!place B in order to raid wor!place B, which was represented by union 1# employer denied entrance, union2 claims no compellin" reason to deny# M employer says that it would allow it outside of wor! hours, and in non,wor!in" areas# o "enerally restricts access to canada post afcilities for busniess and asecurity reasons# o once inside a Canada 9ost facility, *ery little security# o basically Canada 9ost was sayin" that these outside or"ani-ers can only or"ani-e in plants in which they are alrady certified# union1 a"rees that access to wor!in" areas would be hi"hly disrupti*e, and would "i*e union 2 unfair access to wor!ers#

8nalysis code e pressly restricts union acti*ity durin" wor!in" hours o howe*er, allows union acti*ity at wor!place, outside wor! hours# o so BK durin" brea!s and so on# an absolute refusal to admit union or"ani-ers from one or"ani-ed wor!site into another or"ani-ed wor!site is not compatitble with the Code, notwithstandin" fears of security and safety 2aidin" is an important part of ri"ht to form a union# +o employer in *iolation But there must be a balancin" of interests# o employer may restrict where it can show its operations are bein" disrputed or other le"itimate business interests are bein" ad*ersely affected# o stran"er can be e cluded under the act# o howe*er employees from a different location can hardly be seen as stran"ers to whom the employer has not relationship# +ecurtiy "uidelines can be adapted to ensure the wor!place remains secure

2atio =nion acti*ity is o! at a wor!place when not durin" wor!in" hours, and when the employer cannot show that compellin" and 6ustifiable business reasons# ?mployees from one location will not be understood as stran"ers to mana"ement at a second location#

T. $aton 'o., L13@4M BL2B blan!et prohibition on the distribution of union literature at all times, includin" when the store was not open, could not be upheld o the acti*ity would not interfere with the employers le"itimate business interest# +tore located in a mall, and the mall mana"ers maintained a no solicitation policy 0as upheld on appeal, and the court described the need to balance harmonious relations with property ri"hts# Bnce the mall owner was determined to ha*e no *alid business purpose in interferin" with the protected acti*ity, its property ri"hts were re.uired to yield

Ada%s ;ine ;13@E< BL2B =nion was puttin" up pro,N)9 material on bulletin board, which the employer didn%t want# $n this conte t, the union can*asser was no different from e*ery other political con*asser, and shouldn%t be able to use its bar"ainin" a"ent status to help campai"n#

.nion .nfair Labour 1ractices =nions may not coerce membership, but this is much rarer ;ilnet ;ines Ltd. ;134E< BL2B and 'anadian Fa+ricated *roducts Ltd. ;134A< BL2B both deal with unions threateni"n other unions with *iolence or economic retribution, and in both cases applications to replace the attac!ed union were denied#

Remedies for Interference with the Right to +rgani0e remedies play particular role here because of the psycholo"y of the relationship, the importance of time as a tactical consideration, and because after the breach the relationship continues# Typically statute allows for .uasi,criminal and administrati*e penalties# o offenses re.uire lea*e from the board or minister to prosecute o admin penalties a*aliable from the board# Typically when employer unfairly dismisses or suspends, the remedy is lost wa"es/benefits# o does not address dama"e down to or"ani-in" effort as a whole $n Westinghouse, where the plant was mo*ed to a less union,friendl place, the board "a*e the members ri"ht of first refusal with no loss of seniority, and relocation allowance# 8lso "a*e or"ani-es si"nificant access to new wor!place# $n 4adioshack, the court forced the 7&7T to post a notice statin" the employer had *iolated ri"hts, etc#

as lon" as this is not puniti*e and simply compesatory, flows from the act then this is BK# $n BC, remedies are listed in s# 1A o dama"es o notice placed in wor!place detailin" *iolation o access to employee lists, address, phonenumbers o access to employers premises on employers time possibly as a response to forced listenin" meetin"s employees not re.uired to come to these union meetin"s, but would be paid to do so by employer o reinstatment where unfairly dischar"ed, possibly with compensation o automatic certification o

National Bank o) 'anada and 4etail 'lerksC &nternational Bnion L13@2M E Can# L#2#B#2# Basically there was a three,day "ap between certification and bar"ainin" free-es, which the employer used to close the branch and transfer its accounts to a non, unioni-ed branch#

8nalsyis mo*e was moti*ated by anti,union animus# o aimed at /"ettin" rid of/ the union# o wanted to show that tryin" to unioni-e was a mista!e# remedy was to ma!e the union the representati*e of the new branch o howe*er will ha*e to earn support, so must ha*e access, recruit members aim seems to be ensurin" that the employer can not be seen to benefit from its ille"itimate beha*ior# o this was not challen"ed# But part of the order was re.uirin" the creation of a trust, and a letter essentially e pressin" contrition and describin" the trust#

2atio: 9ossible remedy: unioni-in" the new branch immediately

National Bank o) 'anada v. 4etail 'lerksC &nternational Bnion, L13@AM 1 +#C#2# 2D3 +ame facts as abo*e# 8nalysis be"ins at loo!in" at some no*el remedies, and notes that in all cases there is a realtionship between the remedy and the offence# o in 7asicotte the board authori-ed the employee to deal with his own "rei*ance, because the =nion refused to handle it# o $n (alifa Lon"shoremen%s 8ssociation, the unions conduct depri*ed the 9 of wor!, so the 9 were "ranted membership to the union# no such relationship between the trust fund an d the offence# o doesn%t remedy or compensate

 2atio

so should be set aside trust intended to benefit all employees, e*en those not or"ani-ed, but these employees weren%t harmed by the employer%s misdeeds# since the letter describes the trust, it too should be set aside# Beet- )escribes this all as puniti*e, and the CL2B has no power to punish o o

2emedy must ha*e a relationship to the offence 2emedy must be compensatory rather than puniti*e#

1ast Remedies BL2B used to be able to "rant interim relief pendin" a final disposition, which ma!es sense "i*en the time sensiti*e nature of the proceedin"s o repealed in 1334 =ntil recently, the BL2) had the power to certify a union which had been the *ictim of serious unfair labour practices e*en if that union lac!ed ma6ority employee support# =sed in the 0al 7art Case o there the impact of the employer%s speech turned the .uestion from /do you want a union/ to /do you want to !eep y our 6ob/# o no other remedy seemed able to address the harm o =nion was able to show a plummettin" drop in support followin" the unfair practice# +hortly thereafter, this power was ta!en a way# o all that can be done instead is order that a new *ote be made#

Baron ;etal &ndustries L2001M BL2) employer used criminal "an" to threaten union# Board ordered new *otes, made employer "i*e union addresses and so on of all members, ri"ht to leaflet, forced employer to post notice of offence, etc# Criminal law occasionally used#

4. v. <A;art 'anada Ltd. ;13@4< Bnt# C8 Crown appealin" sentence, calimin" it is too li"ht# New warehouse opened, or"ani-in" be"an# ) opposed application, "ot certification delayed# o then hired third party to pro*ide personelle that ) could /hire/ to infiltrate and disrupt the union, and then dilute the *ote# o *ote tied# Third party "a*e false e*idence durin" hearin"# new certification *ote led to unioni-ation once third party "one# o lon" stri!e followed, union e*entually bro!en# ?mployer spent 140000 on brea!in" the union Board "a*e 24K fine, C8 increases to 100K

Capti&e Audience Meetings in person meetin"s with mandatory attendance o may be unfair, particularly where there is e*idence of forced listenin" ie# eployees don%t !now what meetin" is about and are not allowed to lea*e#

4e 'anadian Fi+re 3==1 BCL2B) 1acts union alled"es a series of meetin"s held by the employer duin" or"aniattion constituted capti*e audience meetin"s in*ol*ein" forced listienin" Basically the ?mployer called a mandatory meetin", then said they can lea*e if they want o boss turns his bac! to let them lea*e, but other mana"ers don%t o clearly not a true in*itation to ela*e#

8nlaysi e*en a meetin" that is alled"edly /*oluntar/ may constitute /capti*e audinece meetin"s/ o must assess whether a meetin" is truly *oluntary from the perspecti*e of the employee of orbidary con*iction and fortitude if employees would reaosnablly be unwillin" to lea*e since doin" so would idenitify them as supporters of the union, thismay be a capti*e audience, e*en if the employer tells them they are free to lea*e# if only an employee of unusual con*iction or fortitude would ha*e had the temerity to lea*e, this is a capti*e audience in this case there was a small mnumber of employees, and an employee of ordinary con*iction or fortitude would reasonably thin! this would be construed as opposition ot hte employer 27(, forced listenin" was cointnues disply of slide shows, which ) here says is way more serious o there were meetin"s in 27(, but these weren%t the problem, it was the slide shows, says ) But the 7eetin"s in 27( were lar"e, with security cameras turned off, and noa ttendance recored o employee could chose not to attend or lea*e anonymously without bein" worried that this would be contrued as support for the union# what was offensei*e about the slide shows was not that they were prominent or mpossible to miss, it was that B?C8=+? they were prominient and impossible to miss, employees had to *eiw the m continuously o where employee is forced to *iew the slides or forced to turn away, the communication becomes coerci*e and intimidatin"# o no difference between bein" forced to *iew a messa"e and bein" forced to listen to one#

forced listenin" is what ma!es an otherwise acceptable employer e peression of *iew durin" an or"ani-in" dri*e coerci*e and intimidatin" forced listenin" of anti,union *iew in an effort to chan"e the emloyee%s deicsions with respect to collecti*e bar"ainin", diminishes the human di"nity, libtery and autonomy of hte indi*idual o

2atio essentially, the closer the messa"e is to /forced listenin"/, the closer it will be scrutin-ed so may be better off writin" a letter or somethin", since people aren%t re.uired to read it o althou"h people will probably feel obli"ed to read a letter from their boss# forced listenin" may turn an otherwise acceptable e pression of *iews durin" an or"ani-in" dri*in" coerci*e and intemidatin"#

#he Ac5uisition and #ermination of %argaining Rights #he Wagner Act Model and the 1rinciple of E,clusi&ity 0a"ner 8ct create din =+ and adopted in Canada in the E0s# o mandatory certification procedure which allows a union to become e clusi*e bar"ainin" a"ent of for emploeyes and to compel employer to bar"ain# *oluntary recn"ition also possible# Key features are e clusi*ity and ma6ority rule# 7ay ha*e made more sense in old, lar"e *ertically inte"rated companies# basic principle of or"ani-ation in canada remains e clusi*ity and ma6oirty rule o don%t e*en need 40F of all employees, 6ust 40F of those who *ote o there will always be some forced to union-ie# ?mployers are the ones who insisted on *otes o "a*e them time to react and ta!e steps a"ainst a union ?mployer may still *oluntarily reco"ni-e union the content of the bar"ainin" unit often a source of contra*ersy o lar"e units ha*e more power o many small unions with one employer multiplies the chance of stri!e and unrest &lobali-ation has meant the cost of labour is increasin"ly important 4oy Ada%s, #Bnion 'erti)ication as an &nstru%ent o) La+or *olicy: A 'o%parative *erspective# Bther countries do not "enerally di*ide up into small bar"ainin" units which re.uire ma6ority support# ?mployer *iew here is that people outside the wor!place ha*e no business in the welfare of the enterprise, will 6ust cause disruption# ?mployers demanded that the ma6ority of employees would need to support the union for it to ha*e effect o this was embedded in the 0a"ner act#

Certification ma!es union acti*ity possible, but the process also has ad*anta"es for the employer o it can contest or"ani-ation campai"ns o certification has dissipated calls for "eneral indsutrail impro*ements noncertified employers feel 6ustified in beha*ini" in autocratic and hi"h,handed ways# o employers are banend from see!in" employee representation in other ways# employers no lon"er ha*e any duty to see! democracy in the wor!palce, this responsibility is seen as fallin" wholly on unions#

San)ord ?aco+y, /+ocial )imensions of &lobal ?conomic $nte"ration/ &lobal economy chan"e labour relations "reater mobility of capital means that nations must rely on human talent and infrastructure to !eep in*estments# economic "rowth and producitity has slowed since the 1350s while financial mar!ets internationali-ed 7NCs ha*e spread and fruther increased "lobali-ation "lobali-ation has had mainly ne"ati*e effect on labour# o compeition from lost,cost natiosn puts downwards pressure on wa"es and benefits# o industry mo*in" to more hi"h,tech sectors, but this undermines the demand for blue,collar manual wor!ers, who form the unions base# (istorically, insdutry wide cmpromises which too! /wa"es out of competition/ were acceptable to employer, since they !new their competitors would be payin" the same and so woiuldn%t be at a disad*anta"e o but as indsutries "lobali-e, this standardi-ation is impossible# o and the mere threat of outsourcin" wea!ens unions% bar"ainin" stren"th

@arry Arthurs, #4einventing La+or Law )or the !lo+al $cono%y# &lobali-ation puts employees from different re"ions directly in competition with one another o in competition both for 6obs, and for the lowest wa"es and the hi"hest producti*ity No way of standardi-in" wor!place benefits and ri"hts, since all of these pools of wor!ers are in different so*erei"n nation# 1urther, "lobali-ation has attenuated the relationship between the wor!er and mana"ement, and the community of interests amon" wor!ers# o wor!ers in a company may not share same country, lan"ua"e, *alues, and so on# more and more difficult to seperate employees from contractors, part,time, etc# )ifficult for employees to recon"i-e their ad*ersary, let alone try and or"ani-e and implement common strate"ies# Coordination of unions accross border is super hard, since each location ahs different and inconsistent labour laws#

#he Appropriate %argaining .nit N8 is a ma6ority rule system based on principle of e clusi*ity

But ma6ority rule of what constituencyG how do we decideG o tytpically aim for one lar"e unit co*erin" all employees o bi""est bar"ainin" unit possible ;0eiler%s position< allows mobility better bar"ainin" position fewer stri!es

%argaining .nit !etermination: 6eneral 1rinciples 8 "roup of employees defined on the basis of the employer for whom they wor! and the positions they cocrupy o may consist of all the employees of the employer who are ne"a"ed in the production a particular "ood or sur*ice, or a subset thereof who preform certain tas!s o may be in one or more wor!place# =nit ser*es as electoral bases, and the basis for collecti*e bar"ainin" tends to be a compression of wa"e differentials may produce 6usridictional disputes between different unions representin" different wor!ers o e"# who replaces li"htbulbs, 6anitors or electricationsG )esi"n of the unit has deep impact on the ability of the union to put pressure on the employer# o typically bi""er is better, but a small "roup of h"ihly *aluable employees may also be able to put a lot of pressure on the employer# where there are se*eral unions, more opportunity for /leapfro""in"/ o =1 bar"ains for I, =2 bar"ains for IP1, =1 bar"ains for IP2, etc#

!elineating the %argaining .nit Bnce application to certify is made, Board must determine whether the unit is appropriate o occasionally, usually in public sector, ma!e up of unit decided by statute o more often, in pri*ate sector, left up to tBoard &nsurance 'orp. o) B' and 'B*$ o 0eiler case settin" out basic preferred bar"ainin" unit all employees of a sin"le employer administrati*ely efficient, facillitates bar"ainin" impro*es industrial peace and stability by minimi-in" parallel ne"otiations Bther consideration is whether there is a community of interest amon" the employees in .uestions# o may lead to se*eral unions where employees differ si"nificantly in bac!"round, s!ill, type of wor!, etc# &rowin" part,time wor!ers ma!es this model more difficult# o especially in ser*ice sector where firms are relati*ely small and face a hi"h de"ree of competition# o also mainly women, 50F of part time wor!ers are women# o howe*er little ability to unioni-e

this may be why in cases li!e ;etroland they are increasin"ly included in bar"ainin" unit Casual wor!ers also difficult# o

Free Riders employees part of the bar"ainin" unit and benefit from the collecti*e a"reement but aren%t union members and don%t pay dues

Rand Formula typically must be "i*en by employers since it costs them nothin" automatic deduction of dues from paychec! if union as!s for it, typically "ets it remedies issue of freeriders

.nion shop/Closed $hop only union wor!ers can be employed at the wor!place must be bar"ained for#

;etroland *rinting, *u+lishing and "istri+uting Ltd., L200EM BL2) Lar"e o o o o publisher of papers has sales and distribution deparment also has some temp/part,time wor!ers some cooperati*e student employees all of permanent employees be"an as part,time

8nalsyis employer wants part,time and temp wor!ers in seperate bar"ainin" units o ar"ues that full,time and other wor!ers not in acommunity of interest paid differently, recei*e different benefits, wor! on different schedules )eterminin" the bar"ainin" unit is a public policy decisimn aimed at nehancin" collecti*e bar"ainin" and ensurin" a more harmonious relationship# o not aimed at the simplest possible adminsitration ?mployer says two re.uirements for findin" an appropriate bar"ainin" unit o sufficient community of interests o no serious labour relations problem for employer# Board a"rees as to two re.uirements abo*e o but no assumption that part,time employees ha*e a different community of interests# o more producti*e to focus on concrete problems o ?mployees of the same employer will "enerally be found to ha*e sufficient community of interest to bar"ain to"ether unless the placement of them in the same bar"ainin" unit creates serious labour relations problems# (ere no differences that would be li!ely to create serious labour relations problems# ?mployers su""estion would fra"ment bar"ainin" unit in in appropriate way

Broader based bar"ainin" units are better o more stable, more critical mass, easier to administrate 1ra"mented unit s may cause problems o serious stri!in" issues, lmore difficult bar"anin" so there is a persumption that more comprehensi*e bar"ainin" units are approrpiate here wor!place small already, employers su""estion" would ha*e E or A unions in an already small wor!place# o ma!es no sense to hi*e off 2 employees into sepearte bar"anin" unit#

2atio: To )etermine appropriate bar"ainin" unit o sufficient community of interests o no serious labour relations problems for the employer

&sland ;edical La+oratories, B'L4B contains test for appropriate bar"ainin" unit o !ey principles are industrial stability and access to collecti*e bar"ainin" o industrial stablity usually ser*ed by a sin"le bar"ianin" unit of all employees, small bar"ainin" unit may be appropriate where the proposed members ha*e a sufficient community of interest 1our factors determine community of interest o similarity in s!ills, interests, duties and wor!in" conditions o physical and administrati*e structure of the employer o function inte"ration o "eo"raphy These four factors may be rela ed to facilitate access to collecti*e bar"ainin" in traditionally difficult to or"ani-e sectors

Sidhu and Sons 3==1 =nion applied for certification of a bar"ainin" unit comproised of mi"rant wor!ers employer says mi"rants do the same wor! as domestic farm wor!ers, so should be in same unit o employer thou"ht unioni-ation less li!ely in lar"er, diluted unit o forei"n wor!ers appeared more pro,union o plus if it succeeded, it would be a *ery wea! union since part of the unit had no choice but to wor! there =nion says this is true, but the uni.ue employment status, and terms and conditions of employment, "a*e the mi"rant wor!ers a distinct community of interest

8nalysis, Jice,Chair 7ichael ># 8dam finds that the similarities between the domestic and mi"rant wor!ers far outwei"hted any differences

2atio

the inabiliyt to mena"infully distinu"ish wor! of hte mi"rants from the domestic wo!rers would undermine collecti*e bar"ainin" o there would be no menainful way to distermine which wor! is co*ered by the =nin%s certification, and which is not, sinace all of the farm wo!eres perform all of the wor! at all of the 1arm sites so while we need to be creati*e and fle ible in order to promote access to collecti*e bar"ainin", the boundaries of units must still be rational and defensible access considerations cannot outwei"ht the conculsion that collecti*e bar"ainin" would ha*e no chance of success but this was redetermination in 2003

there is little meanin"ful difference in employment duties between the "roups, and delinieatin" duties would be impossible access considerations can%t outwei"h the fact that collecti*e bar"ainin" would be a failure#

Sidhu and Sons Nurser Ltd. 54e7 3==0 8nalysis clearly the domestics and mi"rants perform much the same wor! at hte same locations o the differenceis in the status and terms of emloyment o the ori"inal panel should not ha*e concluded that these differences were irrele*ant there is a distinct comunity of interest relatin" to the employment status, and their terms and conditions of emloyment o there is a mar!ed and real distinction between the mi"rants and the domestic wor!res o simply because these arise from terms of employment rather than 6ob duties does not ma!e them less meanin"ful from a collecti*e bar"ainin" perpspecti*e the ori"inal decision was erronrous by focusin" solely on the wor! done in the unit rather than on the nature of the circumstances of the mi"rant wor!ers o while duties may usually be a !ey part of determinin" the appropriate unit, not determinati*e it is true that where it is impossible to distin"uish bar"anin" unit wor! from non, bar"aini" unit wor!, this will ordinarly be determinati*e that there is not a distinct community of interest o there could be a lot of disputes about wor! 6urisdiction otherwise But other thin"s need to be considered o whther employees are similar in s!ills, interests, duties and wor!in"conditions so here the !ey difference is not in duties, but in s!ills, terms, and conditions of employees# o they do not ha*e the same terms of employment o they do not ha*e the same ability to loo! for 6obs eslewhere o this puts them in a different position .ua the employer than for domestic wor!ers

2atio

The !ey .uestion then is whether the uni.ue circumstnaces of the mi"rants are suffifent to o*ercome the other $sland 7edical factors and restrictions Collecti*e bar"ainin" can, and often does, follow a strict wor! 6urisidction model o but sometimes mana"ement and labour must be more fle ible in order to achei*e wor!place chan"e and impor*ement# o the Code does not strictly re.urie that the bar"ainin" unit ta!e the traditional form so bac! down to the panel for reconsideration

focus is on whether the uni.ue differences of the su""ested bar"ainin" "roup is sufficient to outwei"h the other factors# here, the community of interest is so different that it outwei"hs the similar s!ills, duties, adminsitration, "eo"raphy and so on#

#imeliness of Certificatino and !ecertification Applications basic principle is that union may apply to certify annly unit that is not already co*ered by bar"ain at any time# o howe*er, there are bars desi"ned to balance the need for stability a"ainst the need to allow employees to "et rid of a union it isn%t satisfied with and the need of the employer to a*oid constant certification campai"ns Typically a union that has failed to or"ani-e a wor!place is barred for a period of time for apply for certification of the same wor!place# o cannot attempt to certify o*er and o*er o s# 13 in BC 22 months between attempts to certify o s# 13 also sets out /open season/ for decertification and /raids/ only in the 5th and @th month after an a"reement 9rocess to decertify o A4F support, then "race, then *ote# where the unit is already reprsented by another union, bars are ti"hter for ri*al unions attemptin" to raid# o typically newly established unions "et around a year where they cannot be raided or dsiplaced o may be e tended by le"al stri!e and lac!out# where collecti*e bar"ain achie*ed, ri*al unions ha*e limited periods where they can campai"n /open season/ o in BC, 5th and @th month of each year $f fraud shown by union durin" certification, union decertiifed# )ecertification follows same timeliness re.uirements as decertification by a ri*al union# $f trade union fails to ne"otiate, renew or administer a collecti*e a"reement for a *ery lon" time, it may be *iewed as ha*in" abadoned ri"ht

$uccessor Employers7 Contracting +ut7 and Related Employers

$uccessor Employers typically a chan"e in corporate identity of the employer terminates the collecti*e bar"ain by common law statute sets out pro*isions that may carry o*er the collecti*e bar"ain to new corporate body# o typically only where the business is sold, but courts ha*e been fle ible in application basically where there is a sale of a business or part of a business, the bar"ainin" ri"hts attach to the new employer o where e*erythin" is li.uidated, may not truly be sale of a business o contractin" out is NBT successorship transferin" the wor!, not the business Canada 9ost fou"ht hard a"ainst contractin" out to 5,11, but in most of the cases the Board found it was not a sale of business

AEaD 5Town7 v. National Auto%o+ile.... ;133@< BNC8, =pheld by +CC 1acts Town contracted bus dri*ers from Business for some years )ecided it wanted to ta!e bac! the bus ser*ice into direct control, ended contract with B (ired own sta.ff, much of whom formally wor!ed for B =nion wants declaration that this was sale of the business and so collecti*e bar"ain should be carried o*er, and Labour Board 8"reed

8nalysis statute sets out the succession rules# o when an employer sells business to successor, collecti*e bar"ain carries o*er o so was this a sale of business with town as successorG +B2 here patent unreasonable# Key part of the contractual relationship was the town%s desire to ha*e a stable busdri*in" wor!force who !new the routes and allowed passsen"er recon"ition when hirin" wor!force after terminatin" K, !ey "oal of twon was to achei*e /substantial continuity/ in wor!force# Board concluded that the stable wor!force was the must *aluable part of B%s business by ac.uirin" the wor!force pre*iously employed by B, the town transferred to itself an essential element of that business o this was sale of a business in the board%s *iew# )i*# Ct# disa"reed, findin" no le"al ne us or connnection here tantamount to a sale# C8 thin!s the statutory definitino is inclusi*e, includin" all manners of dispositions# o /other disposition/ con*ers pretty much any !ind of transaction# +ince hte primary part of B%s business was the pro*ision of s!illed employees, and the employer too! these employees, the town had a.uired a part of B%s business and was a successor employer

the Town too! not 6ust the wor! formerly down by the charterways, but also the added *alue of the continuty, e perience and stablity of the wor! force

2atio: board may interpret sale broadly and inclusi*ely to co*er pratically any transaction The important thin" is whehter an essential part of an employers business has been transferred

Related/Common Employers ?mployers may carry on business in se*eral corporate entitites which share facilites or mana"ement structures# +ometimes employer may sell to another party but !eep ti"ht control o*er mana"ement ;1ranchisin"<# o so there may be more than one employer, that should be treated as seperate body o but this would mean that the union couldn%t bar"ain with one entity who had the power +o labour board may treat associated employer as a sin"le employer for the purposes of bar"ainin" +o employer cannot spin of a subsidiary in order to dilute or split the bar"ainin" unit =nion may apply for a declaration that the employers are in fact common

White Spot Ltd. v. British 'olu%+ia 5L4B7 L1335M BC+C 1acts 0hitespot sold a store to an independent operator who continues to run it as a whitespot sub6ect to a franchise a"reement 0hitespot maintains considerable contol o*er mana"ement o menu prices and food items o mandates supplier and deli*ery company, neo"tiaties suppliers, controls prices o re.uires mar!etin" fee be paid o re.uires the employment of corporate trained "eneral mana"ers, and ensures standard are met# L2B made declaration of common employer# o 0hitespot and indepedent party say bound by statute which says they are seperate#

8nalysis e*eryone a"rees that there is a succession here and the old bar"ain applies to the independent owner for its duration o but employer wants this to be a seperate bar"ainin" unit, limited to the employees of the store so he can bar"ain with them seperately from the other white,spot employees

o s# E@ o

union wants the employees to be one unit since the employees all benefit from a broader bar"ainin" unit# assocaited or related acti*ites carried on by more than one employer may be treated as one if it is felt that it is approapriate by the board

s# E4 o deals with succession o collecti*e bar"ains in force apply to the succesor employer o board may determine whether one or separate bar"ainin" units# where a sale is moti*ated by animus, there will be more li!elyhood to find common employer, howe*er common employer not limited to that situation the de"ree of control will determine whether common employer or not# s# E4 does automatically se*er at sale, but s# E@ may stilloact to find a common employer where the baord finds it appropriate# franchiser, e*en when separely owned and mana"ed, may be found to be a common employer based on de"ree of control o common control and direction will be found where a dominant control is e ericsed by a franchisor under franchisae a"reements with an independently owned franchisee# here the board%s findin" that there was ade.uate control to find common employer was not patently unreasonable

2atio: 0hether there is a common employer is a matter of assessin" the de"ree to which there is common control and direction between employers o there is no need to find actual animus here# s# E4 will automatically se*er the unit durin" succession, but the board may still e ercise it%s s# E@ discretion to find a common employer

A 1roposal for %roader/%ased %argaining in %ritish Columbia Committee of ad*isors made recommendations to implement sectoral representation in BC in order to address the problems of wor!ers in hard to or"ani-e sectors difficult to or"ani-e employees in "lobali-in" world with more and more temp wor!ers#

$ectoral %argaining all employers in an industry and all unions in that industry bar"ain to"ether o ta!es the onus off or"ani-in" indi*idual wor!places employers don%t need to worry about competiti*e disad*anta"e used in health ser*ices, contrsuction#

Minority .nionism would "et rid of e clusi*ity parts of the wor!place may be unioni-ed while others will not o once people see union is wor!in", they could 6oin later

multiple unions in the same wor!place potentially, meanin" more bar"ains for the employer o but the smaller unions would be easier to beat#

Craft .nionism/+ccupational .nionism union based around occupation rather than wor!place o aimin" for /closed shop/ , only members may do that !ind of wor! o aimin" for portable benefits may need som particular e pertise or concern, re.uirin" s!illed wor!ers often ha*e a history of discriination, which is partly remedied now by (28#

?ohn Baigen, (ince 4eady, To% 4oper, 4eco%%endations )or La+our Law 4e)or%: A 4eport to the @onoura+le ;oe Sihota, ;inister o) La+our ;1332< BCLC used to allow for sectoral bar"aiin", and they recommend a return to it in sectors where employees were historically underrepresented by trade unions# Currently all employers must consent before a multi,employer unit can be certified, and this has ne*er happeened# 30 F of wo!ers in business, real estate, financial insitutions, restuarants, etc are unrespresented o these are the fastest "rowin" sectors of the economy and are o*errepsented win women and youth, often low payin" o currently not cost effecti*e for unions to certifiy these places on ad hoc basis o so many wor!ers ha*e no reaslitic prospect of certification, but these people most need trade union representation ri"ht to assocaite and bar"ain collecti*ely illusaory o so we need to create a model that can address this probelm Bld pro*isions allowed unions to sweep employees of a particular employer into a lar"er bar"ainin" unit "i*e ma6ority support# 2ecommendation cals for these sectoral bar"aiin" units in sectors which are historically undersrepsented o must ha*e a defined "eo"raphical area and similar enterpirses within that area union that has ma6ority support at these !inds of location could certify those locations o bar"ainin" would ta!e place then new unions could sweep in multiple trade unions could be acti*e in a sin"le sector similar to contrscution industry o set wa"e le*els, with multiple unions# while employers would ha*e no say o*er collecit*e bar"ain that is in place when their union first certifies, they would ha*e a say durin" the ne"oitation of the ne t bar"ain# once certified, employer would bar"ain alon"side other bar"ains# o many industries in BC operate under industry,wide bar"ains# while opponents prefer enterprise,le*el unions, these are simply not accessible in the underrepresented areas we are concerned with

cartels are ob*iosuly not "ood, but in these !inds of areas where practically no one is represented, probably shouldn%t be our first worry# Certification must be a*ailable to all wor!ers, and this system will allow that without re.uirin" any unit be /swept in/ a"ainst its will# Butcome o small business hated this independent shops ha*e totally different ability to pay from 7aC)onald%s didn%t want to ha*e to abide by a collecti*e a"reement they didn%t ne"otiate o so died a pretty .uic! death# o

"egotiating a Collecti&e Agreement Introduction core of collecti*e bar"ainin" le"islation is bar"ainin" le"isltion re.uires that indi*iduals not bar"ain e cept throu"h union, and that employer not bar"ain with another union# howe*er, this is somewhat hard because the employer often does not want to, and has little incenti*e to, bar"ain with the union# o the parties are bound to"ether in an uncontract,li!e way, and ha*e powers with no e.ui*alent in the normal pri*ate sector, li!e loc!outs and sti!es#

#he $tatutory #imeline statute lays out detailed timeline starts with certification of a union o certification entitles the union to ser*e employer with notice to bar"ain# o if this is not the first bar"ain, either party can se*e notice ser*ice of notice tri""ers /duty to bar"ain/ o re.uires /"ood fiath/ and a duty to ma!e /e*ery reasonable effort/ to reach a collecti*e bar"ain before parties can resort to stri!e or loc!out, they must try to reach a"reement o statute also often re.uires them to "o throu"h a concilation or mediation process typically there will be no imposition of a collecti*e a"reement, with the e ception of first contract arbitration wihch allows terms to be imposed into the first a"reement if parties cannot a"re# ?*en once a stri!e or loc!out bein"s, the duty to bar"ain continues, but does chan"e character o parties no lon"er re.uired to ne"otiate, since they are relyin" on economic coercion to succesed# once a bar"ain is reached, stri!es and loc!outs are no lon"er allowed, and the duty to bar"ain is suspended until it is time to ne"otiate a new a"reement# durin" life of bar"ain, both sides can chan"e a"reement with the consent of the other side o third,party "rei*ance arbitration re.uired in order to interpret the bar"ain#

the only e ception to the ban a"ainst stri!es/loc!outs is where the employer introduces some tehcnolo"ical inno*ation that is li!ely to affect the terms and conditions or security of employment, and this is only in a few statutes ;includin" Canada Labour Code<

#he %argaining Free0e cannot chan"e the terms and conditions of employment once notice to bar"ain has been "i*en free-e be"ins with notice, ends with the si"nin" of anew collecti*e a"reement or the termination of the union%s ri"ht to bar"ain collecti*ely# some 6ursidctions end the free-e once bar"ainin" leads to a stri!e or loc!out# o in BNtario and Newfoundland, if the union doesn%t call a stri!e as soon as lawfully permitted, the employer may unilaterally chan"e terms and conditions without actually istituutin" a loc!out# o in 8lberta, employer must institute loc!out if unoin unwillin", this brin"s the free-e to an end and allows chan"es in terms and conditions#

#he !uty to %argain in 6ood Faith because employer would typically prefer not to bar"ain, we need some way of forcin" them to do so o unli!e an ordinary contract, if they can%t a"ree, one side can%t 6ust wal! away thus rules are needed# s# 11 create the duty to bar"ain in faith o applies to both side are re.uires both parties to ne"otiate in "ood faith and to attempt to conclude a collecti* bar"ain critical in the effecti*eness of unioni-ation and in a*oidin" too many striies# howe*er, this duty is purely procedural, not content

1urposes of the !uty to %argain employer has tudty to bar"ain collecti*ely by statute, for four reasons o to reduce number of stri!es for recon"ition historically many stri!es the result of employer refusin" to reco"ni-e union# statute puts employer under duty to recon"i-e the union o to balance out the employer%s economic power and reduce ine.uality of bar"ainin"power indi*idual employees helpless as compared to employer o implement the basic philosophy of re.uirin" employers to bar"ain collecti*ely employer can%t bar"ain with the indi*iduals alon o to allow employers and employees to rationally ecahn"e *iews and reach a"reements# each side better understands the position of the other third and fourth "oals only tan"entially addressed by wa"ner act

collecti*e bar"ainin" remains a fairly brutal contest of economic power, mas!ed by polite ne"otiations# e*entually as sides come to "rips with economic costs of ne"otiations, reason responsiblity, etc, lead sides to more reasonable positions and persuasion

Content of the !uty to %argain Bnited $lectrical, 4adio, and ;achine Workers o) A%erica v. "e(il+iss 5'anada7 Ltd. ;135D< BL2B ?mployer has an obli"ation to recon"i-e a trade union lawfully selected by employees to be bar"ainin" a"ent o other wise ri"ht to or"ani-e would be pretty hollow )uty to bar"ain has two principla functions o re.uires employer recon"i-e the bar"ainin" a"ent o fosters informated, rational discussion thereby minimi-ein" the potential for /unnecessary/ indsutrial conflict#

!raphic Arts &nternational Bnion Local /3AL v. !raphic 'entre ,ntario L135DM BL2)B 1acts ?mployer ser*ed union notice =nion tabled proposal, but employer wanted status .uo conciliation didn%t help union re6ected compromise from employer subse.uent employer proposal was offered to the union, members accepted and the *ote was con*eyed to employer =nion filed "rei*ance mid,ne"otiation under the old a"reement sayin" the employer had breached by hirin" a certain person o union said it had waited to brin" "rei*ance so as not to 6eapordi-e ne"otiations o employer refused to si"n bar"ain unless "rei*ance was dropped# ?mployer, full of ill,will, put forward 1D new demands for chan"es to the collecti*e a"reement =nion says this is not ma!in" e*ery reasonable effort to reach bar"ain#

8nalysis 2ational discussion and full consideration of issues is a duty, and the employer%s conduct must be wei"hed a"ainst that duty# open discussion necessary in order to meet "oal of decision ma!in"# decision ma!in" capability of parties depends on open and full discussion of the items which are in dispute also re.uires parties to reco"ni-e that the dispute is limited to those terms put into dispute in early sta"es# Can%t hld bac! an item then later brin" it up as process nears completion o this destroys the decision,ma!in" framewor! can%t table additional demands after a dispute has been defined

in the absent of compellin" 6ustiifcation, this is e*idence of a *iolation of the duty to bar"ain in "ood faith# 0hile union was not totall forthri"ht in holdin" bac! the "rei*ance, the parties reached a *erbal a"reement on that issue before the employer re*ised its demand the late "rei*ance did not 6ustify this response, so the employer *iolated the duty to bar"ain in "ood faith o

2atio )uty to bar"ain in "ood faith re.uires full and open disclosure of issues once the terms up for discussion ha*e been determined, can%t later brin" new disputes in#

'anadian Assocation o) &ndustrial, ;echanical and Allied Workers v. N,randa ;etal &nsutries Ltd. L1354M Can# L2B2 1acts durin" ne"otiation, employer set letters to employees in order to pressure union on frin"e benefits, emphasi-n" the difference b/w the company%s and the union%s position union wanted to the employer to disclose the cost of the benefit in .uestions employer refused, sayin" that it iwas not re.uired to disclose the price at which it could purchase those benefits#

8nalysis 2atio withholdin" rele*ant information is a *iolation of the duty to bar"ain in "ood faith, since withholdin" information is clearly not ma!in" e*ery reasonable effort to conclude a collecti*e bar"ain employer can sort of open the door by puttin" certain information into contention, and tehreby be re.uired to disclose where a party witholds rele*ant information, that is a *iolateion of the duty to bar"ain in "ood faith /one would hardly say that an employer who deliberately withheld factual data which a union needed to intelli"ently appraise a proposal on the bar"ainin" table was ma!in" /e*ery reasonable effort to conclude a collecti*e a"reement/ employer%s letter raised the cost of benefits and put it in issue, indicatin" it !new the cost of those benefits# can%t the refuse to pro*ide that information to the union

$ubstanti&e and 1rocedural +bligations Imposed by the !uty to %argain Clearly cannot propose terms that are ille"al by statute certain thin"s can be put into dispute and bar"ained o*er, but an impasse can ne*er lead to stri!e/loc!out

typically matters determinin" the boundaries of the collecti*e a"reement relationship o li!e the si-e of the bar"ainin" unit o or proposals to implement multi,employer bar"ainin" where only sin"le, employer bar"ainin" e ists# Bther than these e ceptions, the parties are free to include most anythin"n in the bar"ain, and press them to or beyond the point of impasse# o howe*er, labour boards ha*e put some restrictions on this freedom +urface bar"ainin" is not permited, while hard bar"ainin" is# o

$urface %argaining &s' -ard %argaining (ard bar"ainin" is allowed, surface bar"ainin" is not surface o "oin" throu"h the motions with no intent to reach a"reement hard o parties may ta!e firm intractable positions on thin"s#

Bnited Steelworkers o) A%erica v. 4adio Shack L13@0M Can# L2B2 1acts the employer had a history of unfair labour practices L2B2 had found a"ainst the employer in the past union ser*ed notice to bar"ain, and re.uested information on the names and statuses of the members of the bar"ainin" units employer set out letters ridiculin" the union and promisin" that no employee would e*er ha*e to pay dues to wor! at radio shac! ?mployer had many *ery outre demands durin" ne"otiation Then new bar"ainers arri*ed, and a lot of pro"ress has made New bar"ainers said that unless the union threatened to stri!e, no more pro"ress would be made durin" stri!e, employer beha*ed a bit fishy and sent letters to employees than!in" those that had crossed the pic!etline#

8nalysis Clearly some pro"ress was made after the new bar"ainin" a"ents arri*ed# o many outstandin" issues were concluded# o seems consistent with a purported /chan"e of hear/ in mana"ement# howe*er, new bar"ainers had no actual authority to reach a"reement, upper mana"ement retained this control, and refused to testify o this "uy had a record of e treme animus and impropriety o plus than!,you letter and beha*ior durin" the stri!e did not demonstrate a /chan"e of heart/ at all# no one from mana"ement came forward to discrebe chan"e of hear or e plain why the pre*ious deep,seated animus /disappeared/# bar"ainers were pretty distant from mana"ement union scepticism understandable "i*en the history of labour relationship#

"i*en the history of mana"ement%s animus, they needed to 6ustify why they had such e treme demands in order to show they weren%t merely see!in" to pro*o!e a stri!e# the fact that no one hi"h,up was willin" to testify seen as pretty damnin"# a lot of employer suborness mi"ht be understandable in normal circumstances, but "i*en history re.uires e planation# The employer%s sutbborness on union security, in li"ht of past misdeeds, leads to the conclusion that it is moti*ated by animus# /0here an employer has acted as the 2espondent has and o*er so lon" a period of time, it may re.uire a particularly cour"aeous employee to Lre.uest that dues be deducted from pay chec!M# Therefore, when this same employer ri"idly ties his position to *oluntary reco*able chec!off, his conduct is open to the interference that he is moti*ated/ by animus# >ust because what the employer was offerin" met the statutory minimum does not mean it was not bar"ainin" in bad faith# o when *iewed in concert with anti,union actions, it may itself be efidence of bad faith# &i*en the history, the employer%s /hard bar"ainin"/ on these issues was more li!ely that nont aimed at a*oidin" a collecti*e a"reement and part of its desire to undermine the union# This is /surface bar"ainin"/: "oin" throu"h the motions of bar"ainin" without the intention of concludin" a collecti*e a"reement o 6ust a subtle but effecti*e refusal to reconi-e the trade union # o must be disfferentiated from hard bar"ainin" indi*iduals may stic! to positions they !now are not li!ely to reach a"reement iout of self,interest inference of surface bar"ainin" re.uires loo!in" at totality of e*idence# it is only when the conduct of the parties on the whole demonstrates that one side has no intention of concludin" a collecti*e a"reement that a findin" of surface bar"ainin" can be made#

)issent Basically thin!s that the ma6ority was wron" to be so sceptical about the /leapord chan"in" its spots/ company was in "enuine hard bar"ainin" and had run to irreconcilable differences new bar"ainin" a"ents made a lot of pro"ress "i*es e*idence of bar"ainin" in "ood faith

2atio parties may bar"ain with positions they !now are not li!ely to meet a"reement, e*en where they can predict no a"reement will be possible, if this is out of self,interest howe*er, where loo!in" at the totality of e*idence, if it is clear the stubborn position is intended to a*oid an a"reement, this is /surface bar"ainin"/ and an unfair labour practice also loo! at the points of resistance, here the employer was re6ectin" the 2and formula, which is practiclaly a "i*en aim is really to see whether the employer is "enuinely attemptin" to come to an "reement#

'anadian Bnion o) Bnited Brewery, Flour, 'ereal, etc v. 'anada Trustco ;ortgage 'o%pany, L13@AM BL2B 1acts union bar"ainin" for two of the many Canada trust branches in ontario# o was only able to bar"ain for mar"inal impro*ements o*er the terms of employment in other branches =nion claimed this was bar"ainin" in bad faith# o "ood faith bar"aini" should re.uire the employer to "i*e the union the ri"ht to participate in or challen"e employer decisions that ad*ersely affect employees#

8nalysis the board%s 6ob is not to act as arbitrator or set out the content of the bar"ai#, e*en where duty to bar"ain in "ood faith *iolated# statute does not re.uire any particular concessions or outcomes, nor does it re.uire that a bar"ain necessarily result from the ne"otiation# duty to bar"ain in "ood faith re.uires parties to en"a"e in informed and rational discussion, and soetimes the employer%s position may be so far remo*ed from apparent business interests that it shows a lac! of desire to ma!e a collecti*e a"reement howe*er there is no ri"ht outcome, and the results ha*e more to do with economic stren"th than reason or fairness o there is no claim of ri"ht o*er any outcome# collecti*e bar"ainin" permits fair and e.uitable distribution, but it does not re.uire it# The union wants to limit mana"erial authroity and benefit the wor!ers, while the employer wants to maintain control and maintain competi*ieness o there is no /ri"ht answer/ to accomodatin" these "oals, only a re.uirement to try and reach a"reement o if no a"reement is reached, or the union is disasitsfied, too bad# (ere the employer was simply hard,bar"aiin" in its own self,interest and le"itimate business ob6ecti*es# o it is willin" to si"n,collecti*e bar"ain, only a shitty one# o employer allowed to ata!e into account own power and relati*e lac! of power in union#

2atio: bar"ainin" process re.uires that parties en"a"e in informed and rational discusison, but it does not re.uire that any particular a"reement, or any a"eement at all, be e*entually reached# 8s lon" as employer is actin" in le"itimate business purposes, it is hard bar"ainin", and the union can li!e it or lump it# o as lon" as the employer can point to a le"itimate business purpose, it will probably 6ust be *iewed as hard bar"ainin"#

Brian Langille

*atrick ;ackle%, #Beyond Belie): La+our LawCs "uty to Bargain# 5133@<

Canada Trustco is an e ample of how this way of thin!in" about the duty to bar"ain is wron"# Basically, the difference between employer bad,faith and employer self,interest is nonsensical# o self,interest includes anti,union animus )uty to bar"ain in "ood faith must ha*e some content o unli!e under common law K, tehre is aduty to en"a"e with a union# The idea that it is ne*er in the ?mployer%s self,interest to si"n a collecti*e bar"ain o $f e*erythin" in the bar"ain is up for "rabs, employer could su""est a bar"ain with horrible terms for the union o is htis bar"ainin" in "ood faith, 6ust because the employer is willin" to si"n the a"reement 2ational employers may not ha*e an anti,union animus, but destroyin" the union is in their self,interest, so what is the difference there is no difference between refusin" to si"n any collecti*e a"reement and si"nin" a collecti*e a"reement the terms of which can be completely dictated and which represent no chan"e from the status .uo a rational employer actin" out of self,interest can thus reach e actly the same place as an employer actin" out of bad faith# some e cetptions in the duty to bar"ain e ist to help brid"e this "ap, but they aren%t particularly coherent o ?aton%s decision o Board faced with employer who refused to depart from status .uo# o Board relied on distinction b/w self,interest and bad faith to uphold this decision o here the Board found that the ?mployer can consider the impact of a bar"ain with one unit on the employees of another unit, and refuse to depart from the status .uo o thus fears about unioni-ation are le"itimi-ed as le"itimate, cost,sa*in" consideration o Board seems to say that the only time terms will indicate animus is where they are less than other employees, since htis shows intent to punish# but, why should this matterG +houldn%t a rational business, actin" out of self,interest, be allowed to demonstrate to the rest of its employees that unoni-in" carries punishmentG This model of contractualism for"ets that we are interested in 6ustice, not simply a"reements of some !ind# $t cannot be correct that identical beha*ior done for animus is ille"al but done for business interests is fine the idea that any content in the bar"ain is BK and demonstrates a willin"ness to bar"ain, is silly# o what the employer "ets is e actly what he would ha*e "ot under no bar"ain at all#

Components of the !uty to %argain in 6ood Faith +ub6ecti* ere.uirement to bar"ainin "ood faith ob6ecti*e re.uirement to ma!e reasonable efforts to come to an a"reement normally as lon" as you are actin" in "ood faith, you are on solid "round but 2oyal Ba!s loo!s at the ob6ecti*e component

o what e actly does it mean to ma!e /reasonable efforts/G reasonable efforts re.uires us to loo! at comparable standards and practices in the industry o is the employer totally out of step with the rest of the industryG where the employer%s position is totally out of step and totaly intractable, this can be a *iolation of the duty to bar"ain in "ood faith#

4oyal ,ak ;ines v. 'anada 5L4B7 L133DM +CC 1acts 8rises after lon" intractable and *ery *iolent stri!e# o employer brou"ht in scabs, which continues to be le"al in N0T =nion member blew up a mine car, !illin" some scabs BBard found *iolation of "ood faith in se*eral areas o most particularly in employer%s refusal to bar"ain unless the union dropped the issue of reinstatement and dsicipline of se*eral employees accused of erious *iolence# BBard order that the employer put bac! on the table a tentati*e a"reement it had pur forwadr years earlier, which the union had then re6ected, with the e ception of four issues on which the employer had chan"ed its position# o parties would be "i*en E0 days to reach a"reement, after whcih point bindin" abri"ration

8nalsyis ;Cory >#< 9arties must bar"ain in "ood faith and ta!e all reasonable steps to enter into a colelcti*e bar"ain o "ood faith sub6ecti*e standard o resonable efforts ob6ecti*e standard ascertainable by loo!in" to comparable stadnards and practices with the particular industry so ma!in" proposals or ta!in" stances that the other party would ne*er a"ree to cannot be e*ery reasonable effort o since reasonable effort ob6eti*e, Board must loo! to the industry to see whether other employers ha*e refused similar claues o if it is common !nowled"e that resual to accept a clause would be unaccetable to any union, that clin"in" to that position is not bar"ainin" in "ood faith# Certain hi"hly e"re"ious stances will allow a rasonable inference that the party is not ta!in" a real effort to meet a"reement# o refusal of basic standard terms# so refusla to e*en tal! about terms that are standard in other members of the industry may lead to the board findin" the employer is not ma!in" e*ery reasonable effort to reach an a"reement# here, union in*ol*ment in dismissal is such a term, and refusal to discuss it is e*idence that the employer is not ta!in" all reasonable steps# +ince board correctly found employer not bar"ainin" in "ood faith, and +o2 patently unreasonable, the Board%s finidn" should be upheld

2atio

duty to bar"ain in "ood faith is assessed sub6ecti*ely duty to ta!e all reasonable steps to reach a"reement is determined ob6ecti*ely o based on the practices of other employers in the industry where employer%s position far from the standard terms in the industry, may be e*idence that it is not ta!in" all reasonable steps to reach a"reement#

National Auto%o+ile, Aerospace Transportation and !eneral W,rkers Bnion o) 'anada v. Buhler (ersatile &nc. L2001M 7LB) 7anitobal Labour Board 1acts =nion alled"ed employer failin" to bar"ain in "ood faith 9lant started as family operation, sold off a few times cyclical employment based on health of a"ricultural industry e*entually burchased by current employees o union did not li!e the purchase, did not belie*e that Buhler had the corporate presence to deal with a purchase of this si-e ?mplyer succeeds into collecti*e a"reement durin" first bar"ain session, employer states /first offer is last offer/ =nion considered employers position, willin" to bud"e on some issues employer continued to offer less and less, and refused to pro*ide, as re.uested, information in relaiton to its proposals#

8nalysis 0hile there were D meetin"s, this is not a factor the board is considerin o concerned with .uality of meetin"s, not number# Buheler pro*ided no 6sutification or documentation for any of its demnads, and not prepared to discuss in a rational way nay of the union%s psoitions# Buhler%s answers were either: no, my answer is no, that%s a defnite noH and you%*e "ot to be !iddin", etc# Buhler must ha*e !nown its positions would eliminate a lot of hte current collecti*e bar"ain, includin" health and welfare benefits, and this would be unacceptable for the union bar"aini"n went beyond /(ard bar"ainin"/ also, employer made constant threats about closin" plants employer%s unwilin"ness to enter into any rational and informed discussions, or pro*ide supprotin" ar"uments durin" ne"otiations, demonstrates somethin" beyond hard bar"ainin" o plus he !ept offerin" less and less# o deliberate attempt to a*oid reachin" common "round# o creatin" a /mo*in" tar"et/ to reach a"reement# This caused the employees to "o on stri!e +o employer%s conduct *iolated the duty to bar"ain in "ood faith and ma!e e*ery reasonable effort to enter into a collecti*e a"reement#

2atio: can%t refuse to honestly and reasonably consider demands of union can%t continously chan"e the offer

/7y first offer is always my last offer/ o !nown as Boulwarism, de*eloped by 8merican company in the A0%s# o detailed initial offer on the table at the start of ne"otiations, said it would listen to union%s position but would not chan"e the offer in any way unless economic conditions chan"ed# o not clear from boo! whether this is o!ay or not, presumably noG

!isclosure of !ecisions or 1lans $ubstantially Affecting the %argaining .nit' $n 0estin"house Canada, board considered de"ree to which duty to bar"ain in "ood faith re.uires the employer to disclose information concernin" plans to close or reor"ani-e plants o immediately after bar"ain concluded, employer mo*ed plant to less,union friendly area# o unoin ar"ued this breached "ood faith, and moreo*er was moti*ated by anti, union animus and therefore constitutes an unfair labour practice# BBard found *iolation of duty to bar"ain in "ood faith, but not unfair labour practice o employer under duty to dsicolose company plans that may ha*e si"nificant impact on bar"ainin" unit if union re.uests o employer does not ha*e duty to disclose plans that ha*e not ripened into at least de facto final decisions# +unnycrest Nursin" homes, board found a *iolation of duty to bar"ain in "ood faith where clear that a decision to contract out a substantial protion of the bar"anin" units%s wor! too! place durin" ne"otiations with the union

Brian Langille, #$Fual *artnership in canadian La+our Law# 5/0197 it is certainly easier for employer to conclude an a"reement if he does not re*eal his plans# o stron" incenti*e for the employer to remain silent, loc! the union inoto a bar"ain, then re*eal the plans o also pre*ents the union from bar"ainin" for benefits it could actually use ;se*erance< o employers can and do e ploit this but non,disclosure is in direct conflict witht the duty to bar"ain in "ood,faith in contract there is no duty to bar"ain in "ood faith, and so no duty to disclosre but colleci*e bar"ainin" is different, and here there is a duty to disclose o helps foster rational, informed discussion 7ana"ement must be able to respond to the economy, and many plans don%t e*er come to fruition o placin" employer in a position where e*ery possible plan is and e actly how close those are too fruition is unreaslistic# o plus union may *iew employer%s discussion of possible plant closin" as a threat o so re.uire the employer to disclose is not wor!able# o but this presupposes that the union is "oin" to be actin" irratinoally the fact is that non,dsisclosure of plans, e*en when not final, to shutdown or radically chan"e a plan is not consistent with the duty to bar"ain in "ood faith

while union can as! .uestions and is entitled to honest answers, the whole point is that "ood faith puts an onus on parties to disclose# lettin" the union !now about rele*ant decisions to close or restructure has se*eral benefits o =nion should ha*e some say in these !inds of decisions o by includin" the information, the process will be more rational where only one party !nows such a critical fact, outcome much more li!ely to be arbitrary or inconsistent# o finally unoin can focus its demands on issues that are lie!ly to be helpful to members, li!e se*erance

&nternational Woodworkers o) A%erica v. 'onslidated Bathurst *ackaging L13@EM BLB 1acts union and employer ne"otiated a renewal of the collecti*e bar"ain" union tried to ar"ue for more benefits around plant closures and se*erance pay at no point did emloyer indicate the plant may be or would be closed# 8 few wee!s after a"reement si"ned, plant shut dow =nion ar"ued employer breached duty to bar"ain in "ood faith o decision to close plant had been final/nea.r finali-ation and thus had to be communicated to the union under westinghouse o or, the Board should reconsider Westinghouse and re.uire disclosure whene*er an employer is /seriously considerin" an action which if carreid out will ha*e a serious impact on employees% Board refused to reconsider, but did find that since the employer had reached a final desicion, it did ha*e an obl"aition to discluse and thus *iolated the duty to bar"ain in "ood faith#

8nalysis Collecti*e bar"ainin" can deal with impact of industrial chan"e, if not completely howe*er, there is a stron" incenti*e for employers to not ma!e decision about closures and restructurin"s until after a bar"ain is made# The board needs to be sensiti*e to the possibility for unilateral employer action once the duty to bar"ain fairly ends and the colecti*e bar"ainin" ends o want to a*oid this incienti*e but at the same time, want to limit effect of ad6udication on chan"es in the industry# so there must be disclosure but disclosure that is sesnsiti*e to all the issues# There is no "eneral duty to pro*ide information unless union ma!es a specifc re.uest for the rele*ant information, thus demonstratin" the union%s interest in the informatin# o otehrwise employer wouldn%t !now what it had to disclose# in this case it is a misrepresentation for the employer to fail to disclose palns to mo*e or close, since the union cannot realistically assess its interests 8r"uin" a"ainst disclosure o 6ust pro*ides more "rounds for disa"reements o hard to say e actly what point in the employer%s decision ma!in" processes the union must be informed#

remedies may often be "reater than the actual dama"e done, "i*in" the union an incenti*e to sit bac! and wait for an L2B award# 8r"uin" for disclosure o part of point of collecti*e bar"ain to "i*e members a say in the "o*ernin" of the business o dan"er of firms simply waitin" until after bar"ainin" to ma!ea decision# o union should be part of the plannin" phase in the first place# o besides, some disruption at bar"ainin" table a small price to pay for "i*in" wor!ers meanin"ful participation# o employer can always i"nore union demands# 8 system where the union "ets answers if it as!s .uestions pro*ides a self,re"ulatin" way of ensurin" appropriate le*els of disclosure# besides, too comple to contemplate a disclosure re"ime taht "oes beyond firm decisions# The board will loo!s at suspcious timin" in terms of busniess decisions, which may be a misrepresentation o the more fundamental the decision to the wor! place, the more suspicious the board will be in acceptin" fine distinctions between plannin" phase and decisions# o

2atio: )ecisions and defacto decisions about chan"es to the wor!place must be made to the employees durin" bar"ainin" or there will bea misrepresentation# =nion has the ri"ht to as! for information and the employer must "i*e it# 0here a decision is of utmost importance to the bar"ainin" unit, the finality of the decision can be less while still re.uirin" disclosure#

Remedies for &iolating the !uty to %argain 2emedies are not penalties o can only award compensation to the in6ured union, not punish the employer# Labour Board must stay within the parameters of statute o howe*er purely monetary wards may not secure the ob6ecti*es of le"islation typical award is a cease and desist order notice sent to employees statin" that the duty to bar"ain has been *iolated perhaps some costs# No*el remedies may be possible, but there are A situations where a remedial order will be in*alid o remedy may not be puniti*e o remedy may not *iolate charter o remedy must ha*e some rational connection to the breach o remedy must be consistent with the ob6ecti*es of the labour Code

4oyal ,ak ;ines v. canada 5L4B7 L133DM 1 +#C#2# ED3 1acts: 8s abo*e

8nalysis: did the labour board "o to far in orderin" an employer to put bac! on the table an offer it had made pre*iously o critically includin" "rei*ance arbitration for employees dischar"ed by employer durin" stri!e# 0ordin" of stautte does not put limits on power of board, allows anythin" that is /e.uitable/# 8im of the Code and the board to resol*e labour dispute, and this is e actly the thin" that 9arliament inteended to resol*e# 2emedy must be rationally connected with the breach o so remedies must be rationally connected with breach and consistent with the underlyin" policy of the code# (ere the decision was reasonable, especially considerin" the e traordinary *iolence in*ol*ed in the stri!e# Board had to ta!e into account this lon" history of *iolence o a simple /cease and desist/ order would ha*e done nothin" but waste time# o no a"reement between parties would be forthcomin"# +tatute "i*es board a lot of fle ibility in terms of awards# (ere the board did NBT impose a collecti*e bar"ain, which may be outside its 6urisdcition o this is what the Bntario board found in 4adioShack o board used a prior tentati*e a"reement as a baseline for ne"otiations# o if the parties couldn%t a"ree after that point, they would be sub6ect to bindin" arbitration# There are four times when a remedial order will be found patently unreasonable o remedy puniti*e in nature o remedy infrin"es Charter o No rational connection between breach, conse.uence of breach, and remedy o remedy contradicts purpose of Code# 2ational connection# o board must be addressin" a particular breach of the code o breach here the employers intractability on the point of "rei*ances o remedy "ets around this by ma!in" "rei*ance part of the baseline of ne"otiations# o also intrasi"ence thwardted a"reement# =nion a"reed to $n.uiry Commission%s proposals, the employer re6ected them out of hand because the dismissed employees would be bac! at wor!# o the result of the order is to put the parties bac! in the position they would ha*e been in had the breach not occured o so connection clear 9olicy consistent with +tatuteG o part of the purpose is )ree collecti*e bar"ainin" o howe*er, this is not the only consideration# o 0here there is no pro"ress bein" made and the party is not in "ood fiath, the Board is 6ustified in fashionin" a remedy# o The position of the employer here put an a"reement out of the picture# o no other solution possible here

2atio 2emedies must not be puniti*e remedies must be in accordance with the Charter There must be a rational connection between the breach, the conse.uence of the breach, and the remedy, 8nd the remedy must be in accordance with the purpose of the statute# no*el remedies possible o in this case, puttin" an old offer bac! on the table, due to the history and intractibility of the dispute# o not truly imposition of a"reement, since at one point parties a"reed on this, and other positions still up for dispute

Buhler (ersatile the employer breached the duty to bar"ain which led to a lon" stri!e remedy was to compenate each employee for the lost wa"es and benefits had the stri!e not occured# 7illions of dollars#

%oard/ordered Abitration possible for first,contact arbitration o both parties state their position, then arbitrator decides o pro*ides a basis for the new relationsip o the whole a"reement is crafted by the arbitrator by the su""estions of the party other methods of arbitration, li!e last,offer, are possible, but not used for first, contact

"ew Approaches to Collecti&e %argaining 7ost bar"ainin" we ha*e loo!ed at is /positional/ or /ad*erserial bar"ainin"# some ad*ocate principled or mutual "ains bar"ainin"#

4ichard 'haykowski ;ichel !rant, #Fro% Traditional ;utual gains Bargaining: The 'anadian $Dperinece# 5;ay /00:7 interest based approach emphases information, persuasion and cooperation while a*oidin" coercion ne"otiations focus on the merits of the issue and the problems to be sol*ed parties aim to achei*e mutual benefits by focusin" on the interests of each party partis aim to be dispassionate and focused on lon",term interests rather than tit,for, tat specific and detailed demands are a*oidin" in order to consider a wider "amut of possible solutions# Bb6ecti*e criteria of assessment as much as possible# helps a*oid costly conflicts, may result in better outcomes and frame the relationship in a different way# interest,based approach may e tend to the employment relationship itself#

7utual "ains bar"ainin" encoura"es continues discussion and adpatation as both parties learn and ad6ust to outside pressures# impro*ements in the day,to,day relationship will shape the way collecti*e bar"ainin" is done

'harles @eckscher, #Searching )or ;utual gains in La+or 4elations# 5/0097 +hell 9lant in +arnia, Canada, uses mutual "ains relations# D teams of 20 employees who are each self,"o*erned o each time capable of runnin" plant on one# o team mana"e own assi"nments, schedules, trainin", dsicipline# team reps and mana"ement and union for a re*iew board# ?mployees part of lar"er union o same len"th of contract as industry o but much shorter, only containin" basic wa"e and benefit standards, with teritairy issues left to an informal handboo! which can be re*iewed ad hoc by the re*iew board o no stri!es e*er# 7utual "ains o 12,hour ships, with lon"er wee!ends# 7ade possible by o total sharin" of information about the plant to all employees o e tensi*e trainin" in problem sol*in" and team relations fle ible wor! force o no prior e perience, minimum "rade,12 education, a*era"e a"e E0, no preconceptions about the 6ob, the union,,mana"ement relationship, etc# National union supporti*e o so is the mana"ement structure#

&ra B. Lo+el, #La+orA;anage%ent 'ooperation: A 'ritical (iew# 5/0037 RBara"inin" is a multissue, multip person process that defies cate"ori-ation the parties may ha*e *ery different "oals interest,based bar"ainin" simplifies the process and does not ta!e into account di*er"ence and conflict in interests# o ie# ma!in" a company more producti*e may be "reat for the sur*i*al of the company, but also may lead to lay,offs# the costs and benefits of chan"es do not e.ually or similarly affect all people in the company o /the betterment of the business/ is not the same "oal for e*eryone infol*ed# o e*en different employees may ha*e different interests payin" employee class I more may mean payin" employee class C less# 0here*er there is a -ero,sum aspect to bar"ainin" ;the pie is not "ettin" bi"ure< there will be conflict o*er how wa"es and benefits will be d*ided# interest,based ne"otiation may be "ood sometimes, but at the end of the day failure to a"ree will lead to a battle of economic will# Tertiary interests, li!e orderly systems of promotion, layoffs etc, are usually desirable for both union and mana"ement

o ;maybe doesn%t cost mana"ement anythin"< $ssues li!e wa"es and benefits are more li!ely to lead to conflict o cooperate all you want, the bud"et is fi ed# +o $nterest based bar"ainin" is particularly appropriate when dealin" with specific issues, such as seniority, producti*ity, etc, but not with the entire collecti*e a"reement ;especially economic issues<# when mana"ement ta!es the lon"er,*iew, interest,based bar"ainin" may be more li!ly to suceed# o where wor!ers and mana"ement both belie*e their li*elihood is not at sta!e, cooperation more li!ely#

First Contract Arbitration $f the parties cannot ma!e an a"reement followin" the first collecti*e bar"ainin" period, most 6ursidctons will re.uire arbitration >urisdictional differences include o whether minister screens to see which cases will "et arbitration o whether the labour board may ulitmately impose a collecti*e a"reement# o whether the terms of the a"reement are to be decided by the board or by an abitrator o whether a findin" of breach of the duty to bar"ain is a prere. of the process# 7anitoba allows the imposition of subse.uent collecti*e bar"ains where there has been bad,faith bar"ainin" or where it is unli!ely a settlement will be reached#

Garrow Lodge Ltd. et al v. @ospital $%ployeesC Bnion et al. ;133E< BCL2B 8nalysis 9rinciples of 1irst Contract 8rbitration o desi"ned to address brea! down in ne"otiations resultin" from the conduct of one of the parties not 6ust an e tension of unfair labour practices remedies o actual bar"ainin" should be encoura"ed to reach first collecti*e bar"ain o mediators should be assi"ned early into fist collecti*e a"reement disputes o arbitration should preferably not be imposed at the end of the ne"otiation process were the relationship has already been bro!en, but once the mediator has found the /stumblin" bloc!s/ in the dispute and !nows what needs to be a*oided 1actors to be considered in assessin" whether first contract arbitration o bad faith or surface bar"ainin" o conduct from the employer demonstratin" a refusal to reco"ni-e the union o party adoptin" an uncompromisin" position without 6ustification o party failin" to ma!e reasonable efforts to conclude a"reement o unrealistic demnads or e pectations o bitter/protracted disputes where settlement seems unli!ely o not an e hausti*e list 1actors for the imposed a"reement o no brea!throu"h or inno*ati*e clauses, but not bound to be status .uo or industry standard either# o arbitrators should use ob6ecti*e criteria

o o o

comparable terms and conditions paid to similar employees performin" similar wor! internal consistency and e.uity amon" employees employer financial state is a critical factor when made !nown to the employer# economic and mar!et conditions of the sector must be considered#

?ean SeDton, #First 'ontract Ar+itration: A 'anadian &nvention# ;1331< Bb6ecti*es of first contract abritration o end the current dispute o allow parties to "et used to one another# BC o *ery few disputes reffered to board o may be that the prospect of first contract arbitration has deterred union reco"nition conflicts# o similar story in the 1ed Ouebec o fisrt contract pro*isions re"ularly applied o mostly as!ed for by unions# o only in about half the cases where application was made were contracts imposed# o one third of the arbitration boards also acted as mediators o normally, only the /stic!in" point/ pro*isions were imposed o in a .uarter of cases, the a"reement was renewed at least once# o few stri!es and loc!outs o renewal a"reements were pretty .uic!# o main point of disa"reement wa"es# $nterestin"ly, abritrators appear to be conser*ati*e when it comes to monetary issues, and liberal when it comes to non,monetary issues# +eems that arbitration becomes more useful the more accustomed people "et to usin" it# o may also ha*e adeterrent effect, but no one in Ouebec, union or mana"ement, wanted the pro*isions remo*ed# There is a tendency in Canada and in Ouebec not to systematically refer cases to arbitration o routine reference could be inefficent, infle ible, and may reduce credibility of the system# 0hile BC has a 1 year imposed contract, and 0eiler recommends 2 years, it may be better to ma!e it the ma imum len"hth ;three years< because it will end the dispute and "et people ma imally used to one another mediation and concilliation as a first step tends to ma!e succesful results more li!ely# 1inally, arbitrators need to !eep ma!in" sure that parties aren%t usin" imposed bar"ain as a way of "ettin" more than they otherwise could#

#he 1rofessional Responsibility of Lawyers Lawyers wor!in" in labour law often ha*e clients who are contemplatin" ille"al conduct#

o interferin" in or"ani-in" campai"n or stri!in" ille"ally# 7ay be particularly acute because most labour lawyers wor! for either mana"ement or labour, ne*er both# o so may be stron" identification between lawyer and client# o *ery stron" polari-ation Cannot wor! for both side due to potential for conflict of itnerest 7ana"ement side labour law *aries a lot in style o some *iew it as 6ust an e tension of corporate ser*ices, "i*in" ad*ice and strate"y o others a true belie*ers who are willin" to toe the line there is a lot of potential for unethical beha*ior it%s founded on repeated business so you want to !eep your client a lot of incenti*e to brea! the rules in fa*our of the client o some employers are willin" to brea! the code, particularly youn" lawyers may be susceptible since they really want to succeed#

Law Society o) Bpper 'anada v. 4ovet L1332M Law +ociety of =pper Canada )iscipline Committee 1acts basically the lawyer here lied on documents to ma!e it seem as if there were lon" term plans to increase the si-e of the wor!force in the bar"ainin" unit# then it turns out the lawyer had also been char"in" personal e penses to cleints, and then deducti"n that from billable hours# +o found "uilty of misconduct

8nalsysi suspended for D months ) is intelli"ent, e perience, competent practioner with a "ood reputation in the le"al community ne*er before !nown to en"a"e in impropriety conduct an aberration with little li!elyhood it will arise a"ain (as en"a"ed in community wor! Later, the con*ocation "i*es one year instead#

)issent had he been steali"n from the client instead of the firm, the lawyer would be disbarred# this !ind of action in the past has led to disbarrment a solicitor who cheats his partners, lies to an adminitrati*e tribunal, and prepares fradulent documents is 6ust as bad as the solicitor who steals flient funds o serious breach of trust this "uy should be disbarred#

Industrial Conflict while collecti*e bar"ain in force, union cannot stri!e

all bar"ains by law must ha*e clause prohibitin" stri!es durin" the collecti*e bar"ain o so characteri-in" an acti*ity as a stri!e or not a stri!e is important in order to determine the le"ality of the action stri!es are needed as weapons, since unli!e other a"reements, parties canno simply wal! away stri!es ha*e different characters in the pri*ate and public sectors o pri*ate wor! stoppa"e causes loss of prudction, business, customers may dama"e the business itself, but wor!ers also suffer creates incenti*e for both sides to a"ree o public employer sa*es a lot of money durin" stri!e not worried about losin" business, since no competition pressure comes from public who are an"ry about not "ettin" their ser*ices but they may "et an"ry at public wo!rers instead o

Industrial 1luralism and Industrial Conflict while collecti*e bar"ainin" hi"hly re"ulated, the ultimate means of dispute resolution remains the use of economic sanctions o if union cannot win stri!e/loc!out, it will not "et a fa*orable a"reement so stri!es are critical, but a lar"e "oal of labour law is a*oidin" their detrimental effects# 1irst efforts at re"ulatin" stri!es basically 6ust banned them outri"ht# o but could not contain unrest# 7o*ed towards pluralist approach which relied more on dialo"ue and accomodation o employers re.uired to reco"ni-e and bar"ain with unions, and the use of economic sanctions is ti"htin" restricted +ome ha*e ar"ued that stri!es should be banned alto"ether and replaced with interest arbitration o reasons not to adopt this absence of a"reed upon standards for assessin" wa"es impossibility of abirtrators to fully understand all the economic *ariables in a mar!et economy dna"er of less acceptable bar"ains# in addition, concerns about public spendin" ha*e made "o*ernments less li!ely to accept arbitrated outcome in the pri*ate sector# +o "o*ernments try and push parties away from stri!es, without tryin" to set out the content of the a"reement# o this puts the focus on tryin" to ensure e.uality of bar"ainin" power#

*aul Weiler, 4econcila+le "i))erences: New "irections in 'anadian La+our Law ;13@0< some ar"ue that Canada%s labour unrest should be met with a ban on stri!in" and a turn to arbitration o we don%t allow stri!in" most of the time, why not eliminate it all to"ether but most e perts a"ree there is a natural connection between the ri"ht to stri!e and the ri"ht to ma!e a free collecti*e bar"ain

at heart of collecti*e bar"ain is the freedom of contract between employer and employee o only parties to the contract truly !now what is in their best interests o they should be free to fi the terms of employment in a mutually acceptable fashion ri"ht to freely a"ree entails ri"ht to disa"ree, to not reach a compromise# o but unli!e in the contract arena, parties simply can%t 6ust wal! away# o we allow unions to pro*ide a counter*ailin" wei"ht a"ainst the employers superior bar"ainin" power# The employer would not reach an ar"eement at all if he had his druthers, status .uo is the preferrable state# o union must be able to pressure employer away from this state +tri!in" acts as a weapon that can force the employer to face teh conse.uences of failin" to a"ree o employer will reali-e it is less painful simply to come to a"reement, e*en if the must mo*e away from their perferred condition# often the *ery prospect of stri!e can pro*ide the needed incenti*e to come to a"reement# since stri!es play such an intrinsically necessary part of our bar"ainin" system, we can%t simply ban them# 0eiler here writin" durin" a time of unrest, where the economic slowdown blunted the power of unions# ?mployer didn%t really losemuch from temporary shutdowns when there was little demand in the first place o stri!es tend to be more successful the hi"her the demand for labour#

A Constitutional Right to $tri4e8 +ince the Charter, there ha*e been many challen"es from union "oin" after laws that limti the ri"ht to stri!e o ri"ht to stri!e not contained in Charter e pressly, but unions ar"ue it is implicity in 2;d< and 2;b< o mainly 2;d< is ar"ued#

4e)erence 4e *u+lic Service $%ployee 4elations Act 5Al+erta7 ;13@5< CLLC 1acts +tatute remo*ed the ri"ht to stri!e from public sector wo!ers

8nalysis: Led )ain 2;d< does not icnlue the ri"ht to bar"ain collecti*ely/stri!e# 2;d< is a broad ri"ht intended to co*er many !inds of or"ani-ations, and not 6ust about unions# o there is thus broad ramifications from the idea that or"ani-ations ha*e a ri"ht to en"a"e in particular acti*ities on the "round that the aciti*ty is essential to "i*e the association meanin"ful e istence ri"ht to stri!e not necessary to "i*e meanin" to 2;d< o loo! at the way totalitarian re"imes restrict the basic association of people o this is what 2;d< is desi"ned to stop #

modern ri"ht to bar"ain collecti*ely no a fundamental ri"ht or freedom, but rather the creation of le"islation and the courts#

8nalysis: 7c$ntyre unions ar"uin" that the ri"ht to stri!e is a necessary incident of the ri"ht to associate under s# 2;d< freedom of association is a response to the totalitarian re"imes where meetin"s are forbidden, curfews enforced, etc# Jalue of freedom of association lies in the attainment of indi*idual "oals throu"h the aid and cooperation of others# o also promotes "eneral social "oals educates members in the operation of demonatric institution allow effecti*e se pressio nof opolitical *iews thus influencin" policy so freedom of asosciation ser*es the indi*idual interest, stren"thens the social order, and supports democratic o"*ernment# howe*er, an or"ani-ation is no more than the people tha m!e it up o a "roup of people has no particular ri"hts beyond the sum of the inidi*idual ri"hts therein# o since you can%t ha*e an indi*idual ri"ht to bar"ain collecti*ely, it ma!es no sense to say there is a ri"ht to stri!e# +cope of 2;d< o Jarious theories as to what is co*ered# 2i"ht to associate limited to a ri"ht to associate with others in pursuit of common purposes *ery restAricti*e 9rotects the ri"ht to e ercise constitutional ri"hts in common somewhat less restricti*e the principle that indi*iduals are entitled to do in common what they may lawfully do alone# collecti*e aciti*tes are protected where they are fundamemtnal to our culture and by common assent are deser*in" of protection# consititutional protection of all aciti*ities which are essential to the lawful "oals of an association e pansi*e model which would protect ri"ht to stri!e all acti*ites done in association should be protected sub6ect to s# 1 analsyis most e pansi*e o re6ects out of hand 4th and Dth, since don%t deal with the indi*idual nature of s# 2;d< o Ath focuses on the aciti*ity itself rather than the purpose of the indi*idual ri"ht purpose is about ensurin" "oals may be persued in common, not about protectin" certain !inds of acti*ities# o 2nd approach is the minimum must at least be able to e ercise your constitutional ri"hts in common# o Erd approach is more contra*ersial, since le"islature could not attac! directly the associational nature of the acti*ity, since it would be bound to treat indi*iduals and "roups ali!e# +ettles on Erd model

all aciti*ites that can be down lawfully alone are protected by 2;d< when lawfully performed to"ether# but no ri"ht to do to"ether what is unlawful alone Clearly this doesn%t co*er ri"ht to stri!e, since no indi*idual ri"ht to str!e# o indi*iduals may not lawfully stop wor!in", since they are bound by contract# may be forced to pay breach, so cessation of wor! is not lawful# o besides, an indi*idual lea*in" wor! is different from a union lea*in" temporarily in order to e tract concessions# 2eally idni*idual contracts of employment ha*e nothin" to do with collecti*e bar"ainin" at this point# so no ri"ht to stri!e# 8lso loo!s at the relati*e newness of a proposed ri"ht to stri!e# o new concept that has only e*ol*ed this century o not the !indo f immutable, funademtnal ri"ht which is traditionally embedded in our constitution# Labour law is hi"hly sensiti*e, and maintainin" a balance between the employer and the employee is hi"hly important# o must be careful to upset this dymaic# o entrenchin" a ri"ht t stri!e would ha*e serious reprecussions o labour issues often better dealt with throu"ht the e pert adminsitrati*e bodies# 9lus constritutionali-in" the ri"ht to stri!e would put a bi" burden on the courts as they sou"ht to e ercise so many s# 1 analysies# o will put labour disputes bac! in the courts instead of the administrati*e bodies# +ince its not clear from the le"islation, the courts shouldn%t interfere o

7a6ority 2atio s# 2;d< does not co*er the ri"ht to stri!e s# 2;d< protects all lawful acti*ities done in concert that may lawfully be done indi*idually

)issent, )ic!son and 0ilson Loo!s at internatinoal law o international law must be rele*ant and persuasi*e for the interpretation of the charter Because they enshrine the same principles as the charter, international con*ention may be useful for fleshin" out more abstract concepts li!e /ri"ht to life/, etc# o Charter should be presumed to pro*ide protection at least as "reat as that afforded by international human ri"hts documents which Canada has ratified# =N )eclarations protect ri"ht to 6oin unio nand ri"ht to stri!e when the stri!e is in conformity with domestic law# o )ic!son says this allows for re"ulation, but not abro"ation , of the ri"ht to stri!e# $LB Con*entions o ri"ht to form unions carries with it a ri"ht to pursue the essential aciti*ites of unions, li!e stri!es, sub6ect to reasonable limits# o restrictions on ri"ht to stri!e should be narrow

confined to public ser*ants actin" in public capacity where disruption would endan"er the public safety or health# and there needs to be some way of protectin" these types of wor!ers from abuse# Committee 2eport on 9rohibitions on +tri!e 8cti*ity o Luanched by 8lberta =nion "roup a"ainst "o*ernment on the basis of 9ublic +er*ices 8ct which bans tri!e acti*ity of pro*incial employees o ri"ht to stri!e necessary for employees to protect their interests o essential ser*ices should be defined narrowly +ummary of international law o o*erwhelmin" e*idence of a lin! between freedom of association and acti*ities of labour unions# o by a"reein" and ratifyin" these documents, Canada has ac!nowled"e the importance of 2;d< to trade unions# o collecti*e bar"ainin" "oes beyond simply helpin" wor!in" conditions protection of employee interests means we must protect their freedom to withdraw their ser*ices, sub6ect to s# 1 o whole point of unions is to influence the employer by 6oin action, which is impossible for the idi*idual, and this is waht is protected by 2;d<# o Le"islation o*erbroad, since it restricted stri!es where the employees did not perform essential ser*ices, because it e cluded some matters from abritration, and because the employees did not ha*e a ri"ht to arbitration#

)issent 2atio $nternational laws to which Canada has a"reed and ratified inform the content of s# 2;d< o show a lin! between labour unions, stri!es, and freedom of association# Concerted actions which put pressure on the employer is e actly what freedom of association is meant to protect#

8ftermath o*er time and cases, )ic!son%s *iew pre*ailed and there is a ri"ht to or"ani-e and bar"ain collecti*ely o but the ri"ht to stri!e remains unprotected

Brian $therington #An Assess%ent o) ?udicial 4eview o) La+our Laws under the 'harter: ,) 4ealists, 4o%antics, and *rga%tists# ;1332< $n the 8lberta reference, freedom of assoctation does not incldue a ri"ht to bar"ain collecti*ely# 7ac$ntyre in obiter said that possbly other aspects of collecti*e bar"ainin" could be protected under 2;d<# This prospect closed in *ro)essional &nstitute o) the *u+lic Service o) 'anada v. Northwest Territorites# o =nion bar"ainin" a"ent for Nurses, employed federally o Nurses were made employees of the Territory#

o o

employees of the terriroty had to be respresented by a union that was incorporated by the N0T "o*ernment to bar"ain, which was up to the discretino of "o*ernment# N0T "o*ernment wouldn%t incorporate the union +CC found that 2;d< did not protect ri"ht to bar"ain collecti*ely# "o*ernment under no obl"iation to bar"ain collecti*ely or pro*ide any statutory scheme to allow collecti*e bar"ainin"#

"un%ore v. ,ntario A! L2001M +CC =pheld the idea there is no constitutional ri"ht to bar"ain collecti*ely howe*er, mo*ed away from the idea that only those ri"hts that can be e ercised lawfully alone are protected by 2;d< o some or"ani-ed employee acti*ity which is inherently collecti*e may be protected# o also accepts )ic!son%s dissent that international a"reements should inform interpretation of the ri"hts, and so 2;d< needs to be defined more broadly +o )unmore may ha*e /bro!e the spine/ of the restricti*e 8lberta 2eference readin" of 23)<

Legal 1rohibition of $tri4es and +ther Economic $anctions: #he 1eace +bligation +tri!es not only means of pressure tactics o rotatin" stri!es, "o slows, wor!,to,rule etc, all aimed at restrictin"/disruptin" wor! Loc!out is the counterport o usually not first line of attac!H usually employer will wait out union and impose new terms unilaterally, whcih it can do in certain situations o so loc! outs used to disrupt union tactics force stoppa"e at the employer%s discretion

1rohibition of $tri4es +tri!es historically used by unions to resol*e practically any disa"reemet, since barrin" le"islation this was the only tool a*aliable 0a"ner act limited the use of stri!es to disputes o*er the ne"otiation of the collecti*e a"reement o can no lon"er stri!e to force reco"nition or en"a"e in bar"ainin", or e*en to enforce a certain interpretation of the collecti*e a"reement $n BC, 7anitoba and 1ederal arena, le"ilsation does allow a stri!e durin" the lifetime of the bar"ain o where tehcnolo"ical chan"e occurs that will chan"e the wor!in" condiitons, a new duty to bar"ain arises with an attendant ri"ht to stri!e# Le"islation re.uires that parties ne"otiate before enterin" a stri!e o in most 6urisdictions disuptes must be summited to mediateion or concilliation before a stri!e can be"in +o whether a stri!e can occur is sub6ect to a lot of re"ulation

!efinition of 9$tri4e9

stri!es are defned broadly basically all acts done in common that restrict production o 8lberta, 7anitoba, No*a +cotia re.urie that the 6ob action be for the purposes of compelli"n the employer to a"ree to terms of employment# o BC no lon"er has this condition of course ille"al acts are not stri!es, and you cannot ta!e actions totally disconnected with your wor! o ie# sabota"e

$tri4es under the %C Labour Code Bnce the collecti*e a"reement has e pired, you are in a le"al stri!e position o must bar"ain in "ood faith to the point of impasse, meanin" you must en"a"e in a full and complete process of collecti*e bar"ainin" +tri!e *ote o union wants this anyways, since its important to ha*e a united fromnt and don%t want people brea!in" the pic!etline o file notice of stri!e *ote, then wait 52 hours before you "o on stri!e last chance to am!e a"reement allows orderly shut,down of operation ;and this period can be e tended where e.uipment ta!es a lon" time to properly shut down<# ?mployer may as! for a last offer *ote o puts the final offer directly to the members this a*oid cases where the union is holdin" the wor!ers hosta"e o used rarely, but sometimes succesful, and hated amon" unions# stri!e mandate is "ood for E months, but usualy unions want it to happen ri"ht away this process may be delayed throu"h the appointment of mediateion# "oin" stri"ht to stri!es is often unwiseH often attracts the opprobium of the public and may put collea"ues that are not in the bar"ainin" unit out of wor!

'o%%unications, $lectronic, $lectrical, Technical and Salaried Workers o) B' v. !raha% 'a+le T(HF; ;13@D< CL2B 1acts employer says employees stri!in" unlawfully =nion was in a le"al position to stri!e, but didn%t want to withdraw wor! ;traditional stri!e< because it belie*ed 7&7T could run the ser*ice a lon" time# +o alternatin" slow downs/speed ups# tryin" to "reat bac!lo"s etc# 0ouldn%t collect money ?mployer wanted the employees to si"n document re.uirin" them to wor! as normal, or they couldn%t come into wor!

8nalysis )oes this !ind of wor! action count as stri!eG $f so, its le"al and the union is fine o the employer%s discipline would thus be an unfair labour pratice# +tri!e is defined *ery broadly# o can e*en include refusal to cross a pic!etline# or refusal to accept super*isory assi"nments#

o boo!in" of sic! concertedly has been found to be a stri!e# o basically anythin" done in concert desi"ned to disrupt production# &i*en tou"h economy, unions are loo!in" for other ways to e ercise pressures# o this !ind of wor! action does not depri*e union of income# +ince we ha*e this broad defiition of stri!e which has been used to find all sorts of 6ob actions ille"al when done durin" a free-e, its only fair that the same definition be used when stri!in" is le"al ?mployer recourse could be to "et mana"ement to wor! instead, or to loc! out the union# But you can%t punish employees for en"a"in" in a lawful stri!e#

2atio broad definition of stri!e ;concerted action Pdisruption< lawful stri!es may ta!e many forms#

'B*W v. 'anada *ost 'orp. ;1332< CL2B2 2atio not clear, perhaps that the courts and boards will be "enerous when it comes to employers /loc!in" people out/, e*en where it appears to be a response to lawful stri!e action# =nion e"an"ed in concerted a*ictii*es to decrease production durin" lawful stri!e ?mployer refused to allow employees who had participated in the lawful stri!es to wor! the ne t day# The board held the employer was 6ust a rotatin" defensi*e loc!out, so it was o!

,ntario Secondary School TeachersC Federation v. !rand $rie "istrict School Board L1333M BL2B 1acts union in lawful stri!e postion, be"ins /wor! to rule/ campai"n o no super*ision of e tra,curricular acti*ites, staff meetin"s, nor partent,teach inter*iews ?mployer ;school board< says these duties were mandatory under the le"islation o acti*ites were not protected /lawful acti*ities/ of the union b/c the teachers were refusin" to perform duties re.uiered by statute

8nalsyis The campa"in is occurin" durin" the correct time the duties the teachers are not performin" are part of their statutory duties, but this doesn%t mean the teachers can%t use them durin" stri!e o otherwise, no stri!e would be possible since all teacher duties are in statue# o and total cessation of wor! is not unlawful# o if the le"islature wants to ta!e that ri"ht away, it should ma!e that intent clear#

+chool board says teachers must choose between total stri!e and no stri!e at all, but board disa"rees# +chool board compains about impact on public and student o in public stri!e, this is how the teachers are puttin" pressure on the employer, since theere is no economic weapon o the teacher%s le*er here is poltical and infleunce throu"h students and parents# This is not e.ui*alent to sabota"e or somethin"# refusin" to perform some duties is clearly contemplated in the definition of stri!e# Board sent out letter that opined the stri!e was unlawful o not an unfair labour practice o 9arties are entitled to ha*e a *iew on the le"ality of each others% actions# o there was no discipline here, and the employer does ha*e a ri"ht to tell the union it belie*es the stri!e action is unlawful

2atio ?*en where duties are set out in statute, unless le"islature ma!es clear that a failure to performe those duties in persuance of a lawful stri!e is not allowed, then failure to perofrm those duties may be part of a lawful stri!e# 9arties are entitled to "i*e one another opinions on the le"ality of the others actions#

Sasketchewan Wheat *ool v. !rain Workers Bnion ;133A< CL2B facts ?mployer alled"ed unlawful stri!e ?mployees had refused *oluntary o*ertime followin" the temporary layoff of ten employees in the unit, which was allowed under the collecti*e bar"ain# (owe*er, they were in the middle of bar"ainin", and the union had ta!en a stron" anti,layoff stance durin" bar"ain"

8nalysis 6ust because the a"reement allowed employees to refuse o*ertime doesn%t chan"e the character of the act, concerted actions that disrupt production# o can%t contract out of the stri!e free-e pro*isions# indi*idual acts that are acceptable may become unlawful acts when done in concert#

2atio

indi*idual, le"al acts that ha*e the effect of disruptin" production when done in concert will count as a stri!e, e*en where specifically pro*ided for in the a"reement e*en if the wor! is technically *oluntary, refusin" to do it in concert will be a stri!e

'B' v. 'anadian ;edia 'lu+ ;1333< C$2B =nion sent out memos to members that the members had a le"al duty to report for wor! durin" a le"al stri!e from another bar"ainin" unit, and that the union could not

ad*ise the membership to refuse to cross the pic!etline, since this would be an ille"al stri!e o indi*iduals had to decide for themsel*es whether to cross, but the union would support anyone who was disciplined for refusin" to cross, and reminded members that this union may be in the same position as the stri!in" union one day# +ome members refused to cross, and the Board found this was a concerted acti*ity =nions can%t "i*e out this !ind of mi ed,messa"e#

#he $tri4e 1rohibition and $ympathetic Action because stri!es only le"al at *ery specific times, *ery rarely will sympathetic action be permitted# but many times unoins would prefer not to cross each others% pic!et lines o failure to cross still usually counts as a stri!e o unless the local stri!e definition includes a purposi*e element then, since the purpose of the stri!e acti*ity is not to put pressure on the employer, the acti*ity is not a stri!e howe*er purposi*e element remo*ed from BC stri!e definition BC is alone in allowin" the ne"otiation of pro*isions that permit the parties to refuse to cross pic!etlines o not re.uired by statute, but if the parties a"ree to it the labour board will "i*e it effect o this is a hi"hly *aluable clause

-ot Cargo/-ot Edict these are clauses allowin" the union to refuse to deal with products that are the product of a struc! employer these may escalate labour unreast and cause it to spread around the economy o e*eryone but BC outlaws them o but in BC, they are allowed under s# 50 the baord has the discretion to appro*e of hot car"o clause and line, crossin" clauses will "i*e effect where consistent with the code not e plicit in s# 50, but board has used s #50 to "i*e itself this power $n the Times Colonist case, the employer said that s# 2 subsumed this discretion o it "a*e the Board the )uty to protect the public interest, and to minimi-e the effect of the stri!e on third parties o but board maintained it did ha*e that power o Board referred the case to arbitration, because this was an issue of interpretin" the clause, and the arbitrator found in fa*or of the union#

Local 3I9, &nternational Longshore%enCs Association et al. v. ;ariti%e $%ployersC Association et al. L1353M +CC 1acts

=nion one had le"al stri!e, and established pic!etlines at the entrance to the port# Bther unions refused to cross the pic!et line, so port operations were closed down# =nion says solidarity means it cannot ha*e been the intention of parliament that refusin" to cross a line would be a stri!e# under a purposi*e defintion of stri!e, this may hold since the purpose of the action would not be to compel their employers#

8nalysis 2atio sympathy stri!es are not e empt from the law a"ainst stri!es whene*er the definition of stri!e is non,purposi*e# new statute does not contain a purposi*e re.uirement o any cessation persuant to a common understandin" counts# no reason to e clude sympathy stri!e in contract or in labour law

*rogstiDASolutions v. '$* L1333M =nion instructed members to pause for "i*e minutes per car at the entrance which was bein" pic!eted by another union this was an unlawful stri!e# !ypsu% WorkersC &nternational Bnion,

Nelson 'rushed Stone and Bnited 'e%ent, Line Local Bnion 606 v. ;artin L135@M Can# L2B2 1acts

=nion 1 didn%t want to cross =nion 2%s le"al pic!et line# =nion 1%s collecti*e bar"ain allowed for refusals to cross the pic!et line#

8nalysis the statute draws no distinction between reasons for failin" to come to wor!# only .uestion is whether the stoppa"e is a result of a common understandin"# o there is no purposi*e element# cannot contract out of this !ind of stri!e# you cannot ma!e unlawful stri!es lawful *ia bar"ai# so cannot be enforced Board su""ests that indi*idual employees who are dsciplined or dischar"ed as a result of the refusal may use a bar"ain which allows them to refuse to cross as a defence

2atio

in most 6urisdictions, you can ne*er bar"ain out of failure to cross no purposi*e definition, so a wor! stoppa"e is an unlawful stri!e no matter the reason cannot ma!e an unlawful stri!e lawful throu"h bar"ain# a bar"ain allowin" refusal to cross may offer the idni*idual employee a defence a"ainst dsicipline#

-ot Cargo/-ot !eclaration clause in a collecti*e a"reement that purports to allow employees to refuse to do any wor! comin"r from or destined for anouther employer who has been declared unfair by the union# o only le"al in BC# o as are clauses that allow refusal to cross# 7anitoba ma!es this e plicitly unalwful#

Economic $anctions A&ailable to the Employer !efinition of 9Loc4out9 Loc!out is any closure or suspension of wor! by the employer to compel their employees to a"ree to terms or conditions has purposi*e lan"ua"e since there are many other reasons an employer mi"ht cease operations# does not include an unconditional plant closure, this is not a locout# typically has the same timeliness as a stri!e, and can arise where*er a stri!e would be le"al# Bnly restriction is the on"oin" duty to bar"ain in "ood faith# the employer%s analo" to a stri!e does ha*e a purposi* eelement, shutdown must be for the purpose of compellin" employees to a"ree to terms and conditions of employment o this is because employers ha*e a lot of otehr reasons to close a business, and in the labour cont t we need to distin"uish labour,related shutdowns from other !inds of layoffs and plant closures# part of this is realted to the fact that once the bar"ainin" free-e is o*er, the employer can unilaterally chan"e the terms of employment# loc!outs are more common where the employer can hire replacement wor!ers o replacement wor!ers allowed in some pro*inces in order to !eep business *iable and to mirror the ri"ht of the union to loo! for wor! elsewhere o but in BC, no replacement wor!ers allowed

Westroc &ndustries Ltd. v. Bnited 'e%ent, Li%e and !ypsu% Workers &nternation Bnion L13@1M Can L2B2 BL2B 1acts

company had manufacturies in se*eral pro*inces# durin" bar"ainin" at one plant, company belie*ed the union was deliberately prolonin" bar"ainin" so all the units could "o on stri!e at once# +o the employer loc!ed the union out, and hired some replacement wor!ers# Board found "ood faith from the employer

8nalysis employer may hire temporary wor!ers in Bntario so as lon" as not moti*ated by animus, the employer can put pressure on the unio by replacin" the wor!er# +tri!es and loc!outs to be treated in much the same way# o employer intended to ha*e the power to pre,empti*ely loc! out# o as lon" as not moti*ated by animus# 8 timely loc!out aimed at presurrin" union is part of the bar"ainin" process# 2i"ht to bar"ain collecti*ely doesn%t mean union has the ri"ht to ha*e all the ad*anta"es# 0here hirin" of replacements or loc!out moti*ated at a*oidin" a"reement or punishin" employees, thisis ille"al# permanent replacements is also unacceptable, since it would mean the employer was not tryin" to reach a"reement with the union but here the employer hired temporary wor!ers and paid them the union rates# o clearly temporary and the union can come bac! to wor! once the bar"ain is settled# temporary wor!ers not much worse for union than simply bein" loc!ed out, and in as much as they may !eep the business in wor!in" shape, may be "ood for union# not allowin" any wor!ers or loc!outs would "i*e the union a hu"e strate"ic ad*anta"e# No e*idence of animus# when and if the wor!ers want to come bac! to wor!, the board will closely scrutini-e the employer to ma!e sure he hasn%t actually hire permanent wor!ers

2atio employers may use pre,empti*e loc!outs when in "ood faith in order to put pressure on the union, as lon" as the procedural steps are met in ontario at least the use of temporary wor!ers is fine, !eeps parties in relati*e bar"ainin" positions and ensures the lon" term *iability of the business#

'anadian Association o) &ndustrial, ;echancial and Allied Workers v. *accar o) 'anada L13@3M +CC =nilateral employer,instituted chan"es to wor!in" conditions followin" the statutory free-e are o! as lon" as the employer "i*es the union a chance to accept the proposed terms before actin" on its own, and the employer%s conduct must otherwise show a desire to conclude an a"reement#

Legal Forums Regulating Industrial Conflict

nowadays primarily the 6ob of labour relations boards, but used to be mainly the courts o re"ulatin" labour was basically a combination of criminal and tort law o common law of trespass and in6uctions and so on used to re"ulate industrial disupates Now collecti*e bar"ain constrains when and how stri!es can happen, and labour boards "i*e remedies such as cease and disist o may occasionally lead to penal and .uasi,criminal sanction# some acti*ites and some stri!es and loc!ous may lead to actions in the ci*il courts, labour board proceedin", a criminal prosecution, and an arbitration o each will ha*e a different set of rules and different a*ailable remedies# o all are sub6ect to the charter historically courts were the chief re"ulators, and were often hostile to unions o used torts, criimnal law, interlocutory in6unctions a"ainst unions Board now typically decide whether or not the stri!e is le"al o can issue cease and desist orders, whcih can be enforced by the courts o so there is a tension between courts who claim inherent 6urisdictions, and the boards who claim 6urisdction under statute arbitrators o often called for in the collecti*e bar"ain, and ha*e the power to award dama"es choice of forum will depend on which aspect of the ille"al stri!e the employer wants to emphasi-e may be able to use the police in some re"ionsH in other areas, police will remain neutral Courts ha*e the ability to find unions who don%t follow orders /in conetmpt/ and this can result in hu"e dama"es#

#he Courts: Criminal :usridction courts play a rule throu"h "eneral criminal law of assault, mischeif, etc# watchin" and besettin" a particularly rele*ant pro*ision# o can%t unlawfully stop someone from doin" what they want to do, or beset and watch them# 9olice ha*e sometimes become associated with mana"ement, but now see themsel*es as neutrals, attemptin" on,the,spot mediation +ome penal prosecutions under labour le"islation also occurs, as it does in Ouebec throu"h the Labour Court o possibly less common in the future since the Labour code has recently "i*en the labour board more remedial powers# 9ossible in Bntario as well, but is rarely used since prosecution re.uires consent from the board ;or the minister<# o ?*en when consent obtained, prsoecution is rarely proceeded because it is rarely seen as worth the trouble#

#he Courts: Ci&il :urisdiction much more used than criminal sanction historically in6unctions forced stri!ers bac! to wor!, restricted pic!etin", and limited use of other economic sanctions#

)ama"es o typical ci*il remedy, occasionally "i*en in labour cases o may be both compensatory or puniti*e# o despite possible effecti*eness, employers rarely use this !ind of rememdy# o 7ore commonly used as a ba"ainin" chip# o Ci*il trials are lon" and e pensi*e, durin" which time the union may continue the conduct and continuin" to inflict harm on the employer# o )ama"es thus rarely pursued# $n6unctions# o historically and currently much more important o Throu"hout Canada, in6unctions formerly principle means of enforcin" re"ulations o +ome pro*inces now ha*e "i*en L2B2 power to ma!e cease and desist order o unions typically hated in6uctions interlocutory in6unctions used to preser*e the status .uo pendin" a full trial, in order to pre*ent irreperable here# theoretically the issue "oes to resolution at trial, but in labour matters, the core issue was often moot# E,sta"e test for interlocutory in6unction o 9erliminary assessment of merits of case o 8ssesment of whether 9 would suffer irreperable harm if application refused o 8ssessment of which of the parties would suffer the "reater harm from "rantin"/refusin" to "rant the order# 8 lot of concern that this made the courts a tool of industrial dispute Bften heari"ns were *ery fast, and sometimes e parte without notice# o plaintiff merely alled"ed there was no time to "i*e notice (earin"s usually proceeded by affada*it rather than li*e testimony, which made it difficult for unions to cross,e amine o in order to cross, union had to accept that in the meantime the in6unction would be "ranted# $nterlocutory in6unctions appealable only on consent, which was rarely "i*en# 8lso bound defendants /ser*ants and a"ents, and anyone ha*in" !nowled"e of the order/# +o bound many people beyond the circle of immediate defendants# +ome le"islatures ha*e reformed law of in6unction o Bntario, no e parte in6unctions# o affida*it e*idence limited to facts within the !nowled"e of the deponent o re.uirement of notice, e cept where the delay would result in irreperable dama"e and the 6ud"e belie*es it is otherwise proper# o material facts must be established by oral e*idence o must first try usin" the police to remo*e the dan"er to property/persons before "oin" to in6unctions# o all this applies only where there is a /labour dispute% 7ost other 9ro*inces ha*e also reformed in6unctions o pretty much no where can you ha*e a labour in6unction "ranted e parte# )isobeyin" an in6unction is contempt of court which is penali-ed at the court%s discretion#

#est of In;unction +erious issue to be tried

possibility of irreperable harm ;for interlocutory in6unctions< balance of con*enience fa*orin" the in6unction these in6unctions are e.uitable, and remain a*ailable in the labour conte t#

Bnited Nurses o) Al+erta v. Al+erta 5A.!.7 L1332M +CC Criminal contempt proceedin" to enforce order prohibitin" ille"al strie by nurses labour board made cease,and,desist order which had been re"istered as an order of the court# +CC o Ci*il contempt only turns into criminal contempt where the public act of defiance occurs where the accused !new, intended or was rec!less to the fact that the act would brin" the court into contempt# )issent o Criminal contempt only appropriate where there is a circusmstance of *iolence or threat of *iolence#

In;unctions: %C Labour code abolishes in6unctions in fa*or of re"ulation by labour boardradio o in6unctions still possible where the plaintiff claims immediate dan"er of serious in6ury, or causes actual obstructino or physical daman"e to property# Labour arbitrators "enerally cannot ma!e interim orders, so teh court retains the disctrion to "rant an in6uction to a*oid irreperable harm# *aper 'o. Ltd. v. canadian *aper Workers Bnion L13@DM +CC

St. Anne Nackawic *ulp 1acts

union represented 2 bar"ainin" unit: mill wor!ers and office wor!ers at the )%s mill# Bffice wor!ers went on stri!e, pic!eted mill mill wor!ers sympathy stri!e company "ot inter6unction, mill wor!ers did not return to wor!, so contempt order made still wouldn%t come bac! until office wor!ers stri!e settled, which it was company claimed dama"es a"ainst union# NB court awarded dama"es because of the ille"al stri!e, fined the union for contempt o union says no 6ursidiction

8nalysis,?stey can a court "i*e dama"es for ille"al stri!e under the code which was also a breach of contract o in past, courts ha*e awarded in6unctions and dama"es in this !ind of case# if the cllecti*e bar"ain is silent, there is an implied arbitration clause o here there was an e press arbitration clause so could the employer ta!e the dispute to court rather than to arbitrationG collecti*e a"reement defines the relationship between mana"ement and union, and this relationship is properly re"ulated throu"h arbitration#

2atio

it would offend le"ilsati*e intent of the Labour code to allow parties to turn to the courts instead# so code and collecti*e bar"ain both allow for arbtriation, and there is no room for the courts to interfere without *iolatin" le"islati*e intent# what about historical use of in6unctions and dama"es in the labour conte tG if courts ha*e no 6urisdiction to deal with matters of collecti*e a"reements, how can they ha*e the power to issue in6unctions durin" stri!esG The Labour Code does not ha*e an e press pri*ati*e clause that would oust the courts entirely# o statute instead establsihes a preference for arbitration o*er other means of dispute settlement# o but there is no re.uirement that arbitration be used# o act reco"ni-es concurrent 6urisdiction The whole point of the act is to allow "rei*ances to be settled without stoppa"es of wor!, so it would be weird to allow the union to defend it%s wor! stoppa"e by pointin" to the failure to use arbitrator, when the whole point of arbitration is that "rei*ance can be settled without stri!e# +o while in6unctions cannot settle the dispute or enforce the terms of the a"reement, they can enforce the "eneral law of the statute, which includes an e press prohibition on ille"al stri!es# +o in6unctions are BK, but not dama"es at contracts#

8rbitration clauses in statute lea*e little room for the courts to enforce the collecti*e bar"ain courts do not ha*e 6urisdiction to issue dama"es and order performance , this is for arbitrators and boards courts do ha*e the power to issue in6unctions terminiatin" ille"al stri!es, since this is the whole point of those statutes#

$tri4es .nder the Charter: ()b* many cases came out of the remo*al of the /purposi*e lan"ua"e/ in the definition of stri!e o unions wanted it bac! in this demonstrates a tension between freedom of e pression and the re"ulation of stri!es# since there is no /purposi*e lan"ua"e/, political stri!es an dprotest stri!es are also ille"al o unions attempted to ha*e 2;b< read bac! into the statute o*er a series of cases# in BC, under Campbell there hae been a lot of these days of protest, called for by the BC federation of labour o often in response to public wor!ers who ha*e had their ability to stri!e restricted or remo*ed# =noins say ban on political stri!es as a result of the remo*al of purposi*e lan"ua"e impacts their freedom of speech ?mployer says the attempt to protect stri!es *ia 2;b< is simply an attempt to snea! in a ri"ht to stri!e#

B' *u+lic School $%ployersC Association v. British 'olu%+ia TeachersC Federation 2004 BCC8 1acts 9 in colecti*e bar"ain with ) durin" bar"ainin" period, BC planned to "o on stri!e instead, le"islature imposed new collecti*e bar"ain by statute and remo*ed class si-e and class composition from the permissibel scope of future bar"ainin" BCT1 had a plan to ha*e teachers pass out class si-e info sheets durin" parent teacher inter*iews o also fliers that were put on bulletin boards o some disctricts tried to rp*ent teachers from writin" to trustees, parents, or th emedia o or ma!in" a poster that showed loss of ser*ices BCT1 says that this is contrary to s# 2;b< o ?mployer says no, and e*en if so, s# 1 8nalysis are school boards sub6ect to Charter G o yep, definitely a branch of "o*ernment is 23B0 *iolated o employer says 2;b< not nidtend to apply on "o*# property and durin" employer time $rwin toy, restriction as to forum of e pression has its purpose the control of content rather than of effect, then it doesn%t matter whether the restriction accords with the *alue us under the charter (ere the content bein" restricted was not effect,based, but particularly pro,union content o so we shoud "o stri"ht to s# 1, unless you can show 2;b< doesn%t apply in this place $t should apply, if you want to limit the scope of a ri"ht, do it in s# 1, not under the ri"ht itself# Both Kee"stra and 7orin found that teachers e pressions in public school property does fall within s# 2;b< so this is protected speech what about s# 1G o the conte t of the restriction will determine the !ind of proof the court will re.uire to 6suty the measures nature of the harm *ulnerability of the "roup "roups sb6ecti*e fears and apprehension of harm nature of infrin"ed acti*ity o here the nature of the harm cannot be easily pro*ed or measured howe*er, the BCT1 materials mi"ht interfere with a pernt,teacher inter*iew teachers should use these meetin"s to proselty-e politicallyH this may undermine an open and supporti*e system but it is difficult to ima"e harm from a bulletin board# o nature of infrin"ed acti*ity, political e pression and the promotion of participation i the democractic process

these e pressions *oiced an opionin about "o*ernment policy and so deser*e hi"h le*el of constitutional protection o so we nee d compellin" proof Bb6ecti*e, ?mployer says to control the acti*itis of employees on wor! time, to limit the use of a school for public debate, and to ensure parent,teacher inter*iews are not turned into forums for political debate o nope 7Bre accurate obe6cti*e o maintin public confidence inthe schol system o ensuirn" parent teacher conferences meet its purpose these ob6ecti*e sufficiently important to 6ustify some limit on teachers% freedom of e prssion rational connection o yes, there is ac onnection betwen the actions of the teachers and the public perception of the system, and impact on parent teacher inter*iews minimal impairment o courts shouldn%t merely ima"ine a less restricti*e limitation o but teachers can%t remain silent in li"ht of the importance of free and open political discussion o school "rounds are public property where political e pression must be *alued and "i*en its place o shouldn%t ha*e been a blan!et prohibition on discussin" class si-es these are issues that may be rele*ant to the parents complete prohibition o*erbraud o instead, could ha*e remided teachers to be professional, or dsiciplined if they focused too much on issues not related to parent,teacher inter*iews o so absolute ban was ot minimally impairin" there are few places more rele*ant for a discussion about public resources that in a parent,teacher conference dealin" with the education of the student

ratio This is speech on public property which is protected under s# 2;b<# o it is also clearly a prohibition on content, and this speech is also political which deser*es the hi"hest standard of protection restrictions are o!, but in this case a blan!et prohibition is not minimally impairin"

)issentin", Lowry Basically doesn%t thin! schools should be used as a platform for teachers to ad*ance political a"endas Clearly BCT1 ha*e an interest here, and are free to ad*ocate that in the media and so on o but why shold parents who must pay for the school system send their children to schools where teachers ha*e closed ran!s and are ad*ancin" a particular political a"enda# Lo"ic of the ma6ority means that teachers would be free to hand out flyers, postin" political si"na"e on school property, or e*en holdin" meetin"s on school "rounds#

in ordert o fulfill their role as educators, teachers must act as netural facilitators for thesharin" of dieas o where teachers are usin" the school to aspouse a particular a"enda, the open and supporti*e enironment needd to share ideas is undermined T?achers may be political, and ha*e political opinions o they may e press their *iews while ensuirn" other *iews are welcome o but cannot ma!e thesmesel*es ad*ocates for a political a"enda in the schoosl the postin" of political materials is inconsistent with an open and supporti*e school system, and so is inherently harmful to that system so pressin" and subtantial ob6ecti*e rationally connected o parents ad*ocatin" a political *iewpoint durin" inte*eriws could unermine publc condience, so bannin" that ad*ocacy is rationally conected discussion of class si-e could still occur in the conte t wehre raised by teacher or parent in the conte t of a sutdent whose learnin" is compromised by the new measures so o*erbroad o other than the complete prohibition on discussions of clas si-e, not o*erbroad no outri"ht ban on the postin" or discussion of BCT1 materials tehacers could discuss and ad*ocate in areas where students are not around, or disucss political *iews with parents outisde of the school en*ironment )eleterious effects *#salutaory effects o ri"ht to ma!e political statements necesary to democracy, but e pressin" those *iews at school inteferes with ability of scohols to meet their mandate o allowin" teachers to use public schools as forums to ad*ance particularl political a"endas will detract from the fundamental b6ecti*e fo the school system o public confiednece in schools is dependent on public support and parent%s support, cannot undermine this o so salutary effects outwid"h deleterious effects +o 2;b< *iolated o blan!et prohibition on discussions of class si-es o*erbroad o other measures BK

)issent 2atio This is protected speech, but it is not truly political so much as for the purpose of bar"ain" schools are not the appropriate place for this, teachers must remain neutral the blan!et restriction is almost oK, it would ha*e been fine if there were an e ception where the class si-e relates directly to the indi*idual student#

Arguments for Allowing $peech parents ou"ht to understand the implications of the le"islation on education teachers ha*e only one employer, they can%t mo*e, and the employer is *astly more powerful the speech was rele*ant to teachin" role of teachers has a bi" impact on the public

schools are public places where speech should be encoura"ed

Arguments Against teachers ha*e a "reater access to parents% than the employer o may also ha*e a particular influence teachers may ha*e a capti*e audience durin" parent teacher inter*iews#

Is a 1olitical 1rotest a $tri4e8 National )ay of 9rotest: 135D was a one,day wor! stoppa"e o some employers called this an ille"al stri!e# $n BC, tehse were not ille"al stri!es because at time there was still the purposi*e re.uirement, and here the employees did not ha*e a sub6ecti*e intent to elict an employment related response from the employer# $n N+, the C8 found it was an ille"al stri!e e*en thou"h they also had the purposi*e lan"ua"e o =nion political freedom does not include wor! stoppa"es# o stri!es are only to be used when ne"otiations brea! down# 0here*ere there was no purposi*e lan"ua"e, the stoppa"e was found to be a stri!e# $n &eneral 7otors Canada Ltd# L133DM BL2B, the union had a day of protest o claimed this was protected by 2;b< o court a"reed it fell under 2;b<, but also found that it was a resoanble limit under s# 1#

!rain WorkersC Bnion Local 999 v. B' Ter%inal 1acts 9 represents employees at the Jancou*er "rain terminals there is a collecti*e bar"ain between the 9 and the ) the colelcti*e bar"ain allowed wor!ers to refuse to cross pic!et lines establshed by other unions in 6ob actions a different bar"ainin" unit went on stri!e in the harbor, and so the 9 wor!ers refused to cross ) wants this declared an ille"al stri!e =nion wants to rely on 2;d< and 2;b< in order to protect their actions

8nalysis stri!e under the code is any cessation of wor! done in concert that is desin"ed to restrict or limit output o and stri!es are prohibited durin" the term of a collecti*e bar"ain =non has a refusal,to,cross clause in its contract, but these are not reco"ni-ed as *alid federally BBard concluded that the attempt of the union to rely on the terms of the bar"ain that allowed them to refuse to cross could not be effecti*e, because you cannot ha*e clauses "i*in" ri"ht to stri!e outsdie of statutory bar"ainin" period o didn%t *ioalte 2;b< ebcause neither the purpose nor the effect of the le"islation infrin"ed freedom of e pression

o no 2;d< since no ri"ht to stri!e ) says union is tryin" to use 2;b< to "et a ri"ht to stri!e, and there is no such ri"ht under the labour trilo"y o labour trilo"y deals with stri!e under 2;d<, not 2;b< o 2;b< has been e amined in the past with respect to stri!in" ;K,7art, 9epsi, Cola< o labour trilo"y old and may be time to re*ist +o +CC has reco"ni-ed he importance of pic!etin" under 2;b< and has held that 2;d< includes the ir"ht of em6ployees to or"anie and en"a"e in collecti*e bar"ainin"# so !ey .uestion here will be whether the definition of the /stri!e/ in the code infrin"es 2;b<, and whether that infrin"ment may be upheld under s# 1 9urpose of the prohibition o not to resptrict e pression, but to limit the conse.uences of mid,contract stri!es, particularly the oecnomic disrpution caused by unpredictable wor! stoppa"es statutory prohibition of stri!es is absolute, re"arless of the e pressi*e content of the wor!stoppa"e not aimed at pre*entin" any particular messa"e prohibtion etemporary, as it applies onlywhere collecti*e a"reement in force# o so the purpose is not to lmit e presion doesn%t matter why they are stri!in", we don%t care about that, only that the stri!e doesn%t cause chaos ?ffect of the prohibition o limits ability to e press their support for stri!in" wor!ers by re.uirin" the employees to cross a pic!et line, prohibition actually ma!es the wor!ers do thin"s that ma!e them appear to support the employer/not support the stri!e o to show an effect,based limitation at law, must find a limitation, then see whether it "oes to the $rwin toy factors political/scoial decision ma!in" see!in" truth indi*idual self,fulfillment o labour disputes deal with fundemental le"al, political, adn social issues, and opic!etin" brin"s debate about labour conditions into the public ream o clear has a political/social dimension o refusin" to cross pic!etline a power means of e pressin" solidarity, partiuclarly where it means lost wa"es o the refusal to cross was a messa"e in support to stri!in" wor!ers especially inthe public sector, stri!es are political, since the primary tar"et of the stri!e is "o*ernment and public opinion public sector stri!es also ha*e a political dimiension since they deal with the appropriate alocation of public resources, the le*el of public resources to be pro*ided, and so on# so when wor!ers were refusin" to cross, they were sendin" a mesa"e that they supported the stri!in" wor!ers in order to put pressure on the "o*ernment o so the effect of that act is to discoura"e employees from participatin" in social and political decision ma!in" in the community o so 2;b< infrin"ed#

also could loo! at this from the perspecti*e of indi*idual self, fulfillment, since those in the labour union typically *iew refusal to cross as a moral obli"ation Can the restriction be 6ustified under s# 1G 9urpose, ao*idin" social and economic costs of labour unrest and stri!es, yes pressin" and substantial clearly a rational connection between prohbition of mid,contract stri!es and a*oid industrial unrest minimal impairmnet of ri"hts o possibly, because 9arliament could ha*e pro*ided an e ception where the union has mana"ed to "et a pro*ision which permits unions to refuse to cross o this is a common term in BC o nope, current baln!et prohbition is within the ran"e of reasonable solutions car*in" out e cpetion would underminet he ob6eti*e of increasin"in inudstrial stability proprotionality of impact on the ri"ht o probition does limit ablity to e press solidarity, but they are still able to do other thin"s 6oin the pic!etline outside wor! hours for e ample o in li"ht of the costs of industrial conflcit, the infrin"ement is proprotionate

8nalysis ;concurrin" in result< Blais >8 doesn%t thin! 2;b< *iolated here stri!e acti*ity had no social or political purpose o instead, it was an instrusion into a pri*ate contractual dispute between employees and employers o there was no direction towards any political issue here o only political dimesnion was that employer was "o*ernment, and this is not enou"h o plus, wor!ers free to support in other ways effect of refusal to cross only felt by empoyer, not by the wider public C(arter does not "uarantee most effecti*e means of e pression if stri!in" falls into 2;b<, pratically e*ery human aciti*yt does

2atio

anti,stri!in" laws may be a *iolation of s# 2;b< where it has the effect of limitin" e pression and "oes to an irwin toy consideration o political social purpose o search for truth o indi*idual self,fulfillment (Bwe*er, it may be upheld under s# 1 No purposi*e lan"ua"e will be read into the code#

B'TF v. B'*S$A 2003 BCC8 1acts

BCT1 and (?= en"a"ed in wor! stoppa"es to protest le"islation which intefered with their conditions of employment, e*en thou"h they !new ehtese stri!es would be found ille"al this is because the definition of stir!e in the code no lon"er cotnains purposi*e lan"ua"e o since no purposi*e lan"ua"e, any concerted wor! stoppa"e counts as a stri!e BCT1 stri!e in 200A, *oluntary, teachers not dsciplined for non,participation but paid if they did participate (?= one year later, put up pic!et lines, included some intimidation

8nalysis older le"islation with purposi*e lan"ua"e meant that wor! stoppa"es for political purposes taht were not connectd to wor!in" conditions were not stri!es board refused to o*erloo! purposi*e lanu"a"e in Canada o but it was remo*ed e*entually o whole point of remo*in" that lan"ua"e was to a*oid this !ind of broad stri!e# Conte t of public sector stir!es o different conte t from pri*ate, blue collar stri!es 9ublic sector employer is basically the "o*ernment, so restricted by bud"etary concerns and determinations of a*ailable resources and policy# o public sector stri!e means employer actually sa*es money o impact felt by public rather than the employer these protests were political in that they were aimed at the "o*ernment policy, but also dealt with collectri*e bar"ain" concerns 1reedom of e pression, $rwin Toy o any acti*ity is e pressi*e where it attempts to con*ey meanin" peaceful stri!in" clearly an attempt to con*ey meanin" o purpose or effect purpose is to restrict the conse.unces of mid,contract wor! stoppa"es reflected in the fact that the le"islation doesn%t care about the reasons for the stri!e so purpose not aimed at restrictin" e pression o ?ffect primary tar"et of the stri!e weapon for public sector wo!ers is the "o*ernment and public opioin, so stri!es are thus political obecti*es here not restricted to econmic intersts of the members ;e" teachers probably "enuinely care about student learnin"< but mi ed moti*ations here, so obe6cti*es of stri!es in the public sector cannot be simply di*ided into plitical protest and collecti*e bar"ainin" e pression Ba!es 9ressin" and substantial o union notes that principles of international law inform the Charter scrutiny of the stri!e definition $LB measures terms and conditions of the colelcti*e bar"ain were imposed unliaterral o*er stron" union opposition o "oal is to create certainty and stability in the wor!place durin" the term of a collecti*e a"reement

at some point the restriction of str!in" in order to a*oid disruption of ser*ices and production does become a pressin" and substantil re.uirement o union notes that loc!out lan"ua"e does not included purposi*e lan"uae but employers may need to shut down operations and lay off employees for le"itimate reasons unrealted to collectie bar"ainin", and a broad,effects based approach to loc!outs would failt o rec"no-ie these permissible reasons# o unions note that unor"ani-ed wor!ers are not so restricted but they lac! all labour protection alto"ether, and must rely on contract law so certainly no better off than union rational connection o prohibition of all mid,contract stri!es intended to curtail the disruption caused by stri!es so is therefore reationally connected 7inimal $mpairment and 9roportionality o BCT1 wants an e ception that mid,contract protest stri!es that in*ol*e core principles of freedom of e pression should be charter protected pro*ided they are peaceful and otherwise le"al ;li!e for secondary pic!etin"< o wron"ufl action model doesn%t really wor! couldn%t stop lar"cale hi"hly disrupti*e protsts if they were otherwise le"al o (?= wants a case,by,case e ception where the stri!e is short, occasional, political and which do not disrupt the inte"rit y of the labour system or ha*e s"inificant ad*erse impact on the public interest o no, case by case approach would be unwor!able we need to ha*e stablity and certainity e ception for some limited political stri!es would be hi"hly difficult *ery hard to distin"uish between those stri!es which are acceptable and those which are not# o here the blan!et stri!e prohbition pro*ides teh /bri"ht line/ needed for the benefit of the participants indeterminate standard would re.uire hearin"s, ad6udication, causin" uncertainty and instability o tehre is no hard line between collecti*e bar"ainin" stri!es and political protest stri!es o the current test, based on whether the concerted action impairs production,is clear, unabi"ous, and lea*es limited discretion o (?= proposition would create a standard with widely differin" opionins $e, the BCT1 day stri!e depr*ied thosuands of children of instruction for a day, does this not cause s"in"icant threat to the public interstG o besides, 9eaceful protest stri!es may not directly in*ol*e coercion or intimidation but they certainly cause harm to neutral third parties throu"h the disruption of ser*ices o /si"nificant disrpution fo the public interst/ is a *au"e standard *apable of a wide *ariation in application *au"e test that lea*es wide discretion to the board is not consisted with Charter standrads o the effects based definition of stri!e satisfies the re.uiements of minimal impairment unionscan protest outside wor!in" hours

conclusion o prohibtioin aimed at pre*entin" disrpution to ser*ice or production this is substantil and pressin" o mid contract prohibtion is rationally connected to that ob6ecti*e o the prohibtion creates a clear and non,contra*ersial limit in a political protest conte t other means of e pression than wor! stoppa"es reamin unimpiared mid,contract prhobtion meets minimal impairment and is proportional

2atio The effects based defintion of stri!e is constitutional o a case,by,case approach to political protest based on whether there e ists /si"nificant disruption to the public interest/ would be unwor!able, and is not enou"h enou"h of a /bri"ht line/ 2;b< is infrin"ed, but it is sa*ed unde rs#1

Regulation of 1ic4eting 9ic!et lines often focus of industrial conflict 9rimary pic!etin" occurs at the employer place of business, while secondary picetin" occurs elsewhere# 7ost statutes do not deal e plicitly with pic!etin", lea*in" the courts with a lar"e role to play o typically left for the courts to determine whether somethin" is pic!etin" so while Board decide whether somethin" is a stri!e, pic!etin" is left to courts# boards determine whether or not somethin" is a lawful stri!e, but the content of the stri!e is out of their hand BC does define pic!etin" o has a comprehensi*e set of pro*isions and definitions that deal with pic!etin", and determine when pic!etin" can and cannot ta!e place o this was an attempt to mo*e pic!eitn" to the labour board# o so s# 1 defines pic!etin" attendin" at or near a place of business for the purpose of persuadin" people not to etner the business/buy products/do business with the employer o s# D4 re"ulates pic!etin" permitted at the primary site of the employees and secondary pic!etin" permitted, but only at /allies/ +ome 6urisdictions ha*e "i*en Board more remedial authority o Bntario, Board can issue cease and desist order where someone does anythin" that will en"a"e in an unlawful stri!e# o 8lberta, 9ic!etin" restricted to the employer%s business# Board has wide ran"e of dispute,related misconduct remedies#

)urin" /days of 9rotest/, senior =nion officials told people to stay at home, which the Board found *iolated the statute which doesn%t allow people to do thin"s that will cause an ille"al stri!e# o Basically, if the stri!e was le"al the content of that stri!e was for the courts o but the board does ha*e power to enforce a"ainst ille"al stri!es# o due to charter concerns, the board reco"ni-ed it should "o no farther than ensurin" an unlawful stri!e does not occur#

'aneD *lacer Li%ited v. 'anadian Association o) &ndustrial, ;echanical and Allied Workers L1354M BCL2B durin" le"al stri!e, wor!ers fully bloc!ed access to mine, may ha*e been some isolated threats of *iolence ?mployer wanted order prohibitin"

8nalsyis , 0eiler 9ic!et here ille"al, since it in*o*les Criminal prohibition on assualt and threats of *iolence, as well as the (i"hway 8ct in obstructin" traffic Board%s 6ob is to deal with re"ulation of pic!etin", while up to courts to handle ci*il and criminal law features# some ha*e ar"ued that the board should deal with *iolence on the pic!et line, because otherwise employer may be able to bac!,door the labour board and use the criminal and ci*il systems# but this would ha*e serious consittutional problems# o Board competent to enforce the Labour code, but not to enforce "eneral ci*il or criminal law#

2atio Jiolence on the pic!et line is a matter for the courts, not the labour board Labour Board only competent to enforce labour code, not to assess the content of pic!ets

1rimary 1ic4eting typically Boards and courts allow wider scope for pic!etin" at the place of business# where timely, only restrictions based on tort and criminal law# o cannot assault, trespass or obstruct in principle, but the reality is more nuance, and court recon"i-es that effecti*e pic!etin" re.uires a certain interference with the ci*il and le"al ri"hts of the owners $n BC you cannot be sued for trespass by pic!etin" in the labour conte t in an area that is "enerally accessible by the public o but cannot enter into dan"erous or pri*ate areas o typically you stand in dri*eway Board re"ulates common site pic!etin" o where more than one employer shares a common area o Board can ma!e order dealin" with this type of situation

@arrison v. 'arswell L135DM +CC 1acts ) char"ed under trespass acts for pic!eitn" inside a shoppin" center#

8nalsyis, )ic!son: ) ar"ues that the ri"ht to peacefully pic!et outside of the business in pursuance of a lawful stri!e is more important than the owner%s property ri"hts while 6ud"es may inno*ate, they must do so *ery slowly and in a limited way# Common law has lon" reco"ni-ed the ri"ht of the indi*idual to his or her property The trespass act ma!es clear that enterin" without permission is trespass, and if anyone is "oin" to chan"e this, it should be le"islature

)issent, Las!in +hoppin" center has a sort of public nature o free to access for most people, sub6ect to lawful beha*ior the employee was in a lawful stri!e and was peacefully pric!etin" in front of usiness o employer would not ha*e been able to sto pthis# Landlord mo*ed her to public sidewal!, she wouldn%t so char"ed under trespass# 0hile the *eters case esalished that landowners may ha*e sufficient possesssion o*er sidewal!s to support trespassin", this isn%t a definiti*e answer to a labour stri!e o can%t be applied mechanistically (ere the employee should be allowed to pic!et wihtout disturbin" or obstructin" others, as she is a member of the public and also an employee in a lwaful stri!e o she has a lawful interest in pursuin" le"itimate claims a"ainst her employer throu"h peaceful pic!etin""

ratio 7a6ority, if pic!etin" in*ol*es a trespass on the land of a third,party, it can be sued for under trespass Las!in , if the pic!ein" is otherwise lawful and peaceful, the employee does ha*e soem ri"hts to pic!et on land of a public nature

8ftermanth 7anitoba trespass act o*erruled ma6ority and allowed this !ind of stri!e# BL28 had a pro*ision for a while that e pressly allowed pic!eitn" durin" a le"al stri!e on premises to which the public normallly had access, but not any more it appears# $n the lon" run, this /*ictory/ was remedies by statute o s# DD in BC o cannot sue someone for trespass that is ordinarily accessible by the public when in the conte t of a labour dispute

$econdary 1ic4eting

pic!etin" a customer, supplier, competitor of the employer may sometimes be more effecti*e than primary pic!etin", particuarly where the secondary site is more public o ie# pic!etin" at the retail ele*el (ersees is the classic case o union en"a"ed in secondary pic!etin", which the BNC8 finds to be ille"al per se o must pic!et own employer, and must not e tend the dispute to customers, suppliers, etc BC o*errode this *ia statutory pro*isions which permitted pic!etin" of an ally o secondary pic!etin" BK where the tar"et is an ally ?*entually, complete ban on secondary pic!etin" o*erridden by s# 2;b<

<A;art 1333 +CC =nion members were en"a"ed in a lawful stri!e with 2 branches of the K,7art chain those members went to a third, non,unioni-ed store, to hand out leaflets in an attempt to dissuade shoppers o they were not disurptin" operations or anythin" $n BC, this falls within the defintion of pic!etin" o they were outside a business tryin" to stop people from comin" in =nion challen"ed under s# 2;b< o +CC a"reed, and struc! down that defnitnion of pic!etin", which was ne*er replaced o so now we ha*e no e press definition of pic!etin" Court found leafletin" to be important e pression o customers would be allowed to protest out front, why would we restrict employees in the course of a lawful stri!eG o 2;b< desi"ned to protect acti*ities li!e pic!etin" Court ma!es a distinction between informational pic!etin", which is lawful and protected o and si"nal effect pic!etin", which won%t always be protected#

*epsiA'ola 'anada Beverages v. 4etail, Wholesale and "epart%ent Store Bnion ;2002< +CC 1acts durin" le"al stri!e, stri!ers pic!eted some retail stores which sold 9epsi products but were not connected to the 9epsi,Cola Company 9epsi initially "ranted an interolcutory in6unction bannin" secondary pic!etin"# +as! C8 struc! down, +CC a"ree#

8nalsyis , 7cLachlin and Lebel when may secondary pic!etin" be conductedG =nion wants current common law chan"ed since it%s hard to apply and unduly restricts e pression#

The le"al status of secondary pic!etin" is indeed a matter for the courts# The Charter can inform the de*elopment of the common law# o Charter ri"hts are based on fundamental *alues and principles which should "uide the canadian law o )olphin )eli*eires de*elop and apply charter principles to the common law# Common law cna "row with the charter# 1reedom of e pression is also a *alue that should inform the common law# o common law also protects pri*ate property Charter *alues should be wei"hed a"ainst the underlyin" principles of the common law o but far reachin" chan"e to be left to the le"islature (istorically the use of economic pressure used to resol*e disputes between the employer and employee# o limited use of economic pressure is understood to be a le"itimate price to pay in resol*in" industrial disputes in an e.uitable way 9ic!etin" is an or"ani-ed "roup of people carryin" placards, with two purposes o to con*ery information o to put pressure on the employer and by e tension its suppliers and clients# pic!etin" runs the "amut of e pressi*e acti*ity o may be peaceful informatin, may be shoutin", bloc!in" entrance o could be a si"n of labour strife, or 6ust a physical demonstration of dissatisfaction $t is always e pressi*e action# o so en"a"es 2;b< o and its also an important compenent of labour relations o helps en"a"e the public which may lead to resolution o so benefits whole society howe*er in some cases harm of pic!etin" may outwei"h s# 2;b< , the s#1 analysis# there is always "oin" to be some economic impact from pic!etin" ;that%s the point< o but the employer ar"ues this shouldn%t impact third parties don%t want to e wpand the labour dispute beyond its core# $n )olphin )eli*ery, 7c$ntyre found that it was le"itimate to curtail secondary pic!etin" in order to stop the spread of labour disputes o howe*er he 7c$ntyre was writin" in obiter on the presumption that the +econdary pic!etin" would be tortious, not that secondary pic!etin" should be ille"al per se o so tecnically the court has ne*er ruled on whether seocndary pic!etin" is allowed 8nd third parites can%t and shouldn%t be totally isolated o they should be protected from /undue sufferin"/, but not entirely isolated from the repercussions of labour conflcit# +o basically third parties should be sheilded from /undue/ harm 9ossible +olutions o secondary pic!etin" ille"al per se o ban on secondary pic!etin" unless its at /allied/ enterprises, the allied (ersees rule o permittin" secondary pic!etin" unless the pic!etin" amounts to tort or wron"ful conduct# $lle"al per se

secondary pic!etin" would always be ille"al rule in (ersees o pretty anti union o an e pressi*e act that is le"al and le"itimate if done by an indi*dual becomes ille"al when done in concert o discounts the importance of freedom of e pression in the labour law conte t, which can be discussed later # ? ception to (ersees, 8lly )octrines o (ersees is riddled with difficult e ceptions o baiscally where the location of the pic!eitn" is not the primary wor!place of the employees was owned by the same employer, then that was primary pic!etin" and not secondary pic!etin" at all# o but this is not particularly lo"ical, since what if pic!etin" the primary employer nefcessarily impacts the secondary employerG o ally doctrine where the secondary location is basically helpin" the employer carry out business durin" the stri!e# or where the third party allow struc! employer to conduct busienss from the third party%s warehouse# o probably default position is some !ind of modified (ersees 9ermittin" +econdary 9ic!etin" unless it amounts to Tort or Crime o all pic!etin" is permitted in less it can be shown to be a tort or a crime# o as lon" as the pic!etin" remains lawful, no problem# o reco"ni-es that pic!etin" is an e ercise of freedom of e pression +o what is the best approach to balance the interests at sta!eG o wron"ful action o confiorms to charter and presumes that secondary pic!etin" is ille"al limitations must be 6ustified o best protects the freedom of ep ression o limits focus on economic, pri*ate interests that ha*e no place in the charter o fle ible can accomodate both business and union interests third parties protected *ia torts li!e intimiation, nuisnace, inducement of breach will protect property interets o more rational and clearer than per se or modified hersees they use location as the primiary criterion, where as the wron"ful action model focuses on the character of the action itself o a*oids the confusin" distinction between primary and secondary pic!etin" both are prima facie le"al and BK# o *oids labour/non,labour distinctions now it doesn%t matter whether the pic!eitn" is bar"ainin" related or related to somethin" else o Balance of power must ensure that unions and employers are in a "ood balance not clear that wron"ful action will unduly undermine the power of employers pro*inces can respond with limitations by statute if they thin! differently this is 6ust the common law approach to secondary pic!etin" NBT a rulin" on the le"itimacy of statute o undue harm to Neutral third parties o

0hat o o o o

focusin" on the eoconomic stauts of third parties puts not emphasis on freedom of e pression o*erstates the interests of third parties by positin" a fundemental ri"ht to trade in the struc! "ood, without any basis doesn%t ta!e into account that e*en primary pic!etin" effects third parties sacrifices ind*idual ri"hts to collecti*e "ood# +i"nallin" effect it is ar"ued that secondary pic!etin" is coerci*e in tellin" people not to deal in a "ood /or else/# but si"nals are still e pressi*e by definition a si"nal is meant to carry a messa"e to others# better to admit that si"nals are e pressi*e, but can be limited *ia s# 1 plus this acts as a special rule to union speech, and it is better not to car*e out e ceptions for the labour conte #t and not all secondary pic!etin" relies on a coerci*e pic!et line could 6ust be persuasi*e or informational# so the harm may *ary with the !ind of picetin" it%s one thin" for a union to try and shut down a business, it%s different to try and con*icte the customers not to buy the struc! product# so in certain cases the si"nallin" effect may 6ustify restrictions, but not as a "eneral rule: it will depend on the conte t )oes a wron"ful action 2ule offer ade.uate protectionG does it do enou"h to protect third parties as compared to freedom of e perssion wron"ful action catches .uite a lot of pic!etin" *ia nuisance, trespass, intimidation, defamation, inducement to breach, etc# it will catch most problematic pic!etin" may be able to supplement the wron"ful actions by common law or by statute aimed at prese*in" balance# le"islatures may limit secondary pic!etin" if capable of withstandin" a s# 1 challen"e about the in6unctionG only a*ailable where a wronful action has occured cannot "et an in6unction for peaceful secondary pic!etin" secondary pic!etin" is not a tort that can allow an in6nction# in6uncti*e releif must be based on a specific tort

2atio: at common law, secondary pic!etin" is prima facie le"al as lon" as it is not criminal or tortious lea*es open the possibility that le"islatures can limit seocndary pic!etin" in line with s# 1#

Aftermath of 1epsi/C+la

8lbert NB and Newfoundland all prohibit secondary pic!etin "by statute#, e*en for allies howe*er, in 8lerbta the courts ha*e found that a compelte ban is a charter breach because it went further nthan necessary to a*oid economic dama"e# $n B' !$B v. B' L13@@M o >ustice 7c?achern "ranted an in6unctino to himself to stop pice!ters outside of the courthouse on the basis of contempt of law# o because this was the court actin" on its own motion, )olphin deli*ery applies to allow the Court to be sub6ect to Charter o howe*er, the court upheld the in6unction *iewin" it as necessary to protect the ri"hts of third parties by ensurin" access to the courts# This rulein" was used in Bntario 9ublic +er*ice ?mployee%s =non *# BNtario ;133D< to uphold an inunction a"ainst pic!etin" a courthouse, e*en thou"h the *idence was that the pic!etin" was not disuadin" anyone from enterin" the courthouse#

'anadian Forest *roducts Ltd. 54e7 .3==I2 B'L4B" 1acts (?= was in*ol*ed in labour dispute with health care employers o*er new collecti*e a"reement o le"islated bac! to wor! with new a"reement o (?= had a few days of protest instead, some of which was found to be ille"al pic!etin" some (?= wor!ers went to the )%s mill, had placards on and con"re"ated outside "ate +tarted off as an information pic!et, ta!in" to wro!ers as they dro*e into wor! o didn%t bloc! line or anythin" Leader of "roup chan"es it into a /official pic!et/ o 7ill unit starts refusin" to come into wor! o mana"ement tells the pic!eters they will be liable if people didn%t come to wor! o mill shuts down none of the mil wor!ers 6oined the pic!et, 6ust went home Board issues cease and desist order, pic!eters lea*e +o basically we ha*e a pic!et that started of as informational and a le"itimate protest o which turned into /si"nal effect pic!etin"/ o which stopped the Canfor wor!ers from comin" in# Not totally clear the de"ree to which the (?= ordered the stri!e

8nalysis in order to "et reconsideration, must demonsrate a /"ood ar"uable case of sufficient merit that it may succeed on one of the established "rounds for reconsideration/# basically =nion is ar"uin" this wasn%t a stri!e, this was a le"itimate political protest that the Cdoe does not co*er o one the /bac! to wor!/ le"islation was passed, this chan"ed from a labour dispute to a political protest, so board lost 6urisdiction o no#

had the union "one bac! to wor! and protested outside wor!in" hours, it could ha*e been political o but instead they used wor! stoppa"e as economic stoppa"e with the intent to impro*e the bar"ain o so not a /political protest/, but a labour dispute with political o*ertones# =nion also ar"ues that since the BC defintion of pic!etin" was struc! down in K7art Canada, there is now an unrestricted ri"ht to communciate as lon" as the communication is not ceorci*e or intimidatin" o nope, the restrictions in the code that co*er pic!etin" still apply, notwithstandin" the current absence of a statutory definition of pic!etin" (ere, the informational incident was not a pic!etline, but once it went /official/ it became a pic!et, and had a si"nal effect, accordin" to the or"inal board anyways# o thus it is possible to wear placards and so on that are different from /si"nal effect/ pic!etin"# +o how do we !now the protest became a pic!etG o the (?= rep called it /official pic!et lines/ o the conduct constituted a "roup of people who had con"re"ated at the enterance of a remote unioni-ed wor!place 6ust before shift chan"e with placards so it is pic!etin" because it is identified as such by the people doin" it, and because it is clearly the !ind of conduct reco"ni-able as pic!etin" in BC o you could ha*e a protest or con"re"ation, e*en with placards, but once you try and stop union members from crossin" the line, this is pic!etin" Canfor%s application o Canfor wants to hold (?= liable for the actions of members o the ori"inal board did not thin! the e*idence was clear enou"h that the (?= had intentionally done this o re*iew will only be a*ailable here on palpable and o*erridin" error test, which was not made out here the board%s decision was not the only one that could ha*e been made out, but it was reasonable# o on the other hand, the board appeared to err in findin" that there was /no e*idence/ that (?C authori-ed the pic!etin" of the mill there was consdierable circumstantial e*idence presented by Canfor that su""ested (?= authori-e the stri!e# while wei"hin" is up to the board, this su""ests there was an error# so the .uestion will be remitted# Can the union be held *icariously liableG o Canfor says the union should be held liable for authori-e and direct its members to "o to the mill entrance and en"a"e in political protest, since these acts were so connected to the ille"al stri!e# the ori"inal board belie*ed it was without 6urisdiction to hear this ar"ument, but this is incorrect o basicaly, it is an open .uetion whether the (?= *iolated the code e*en if it idid not authori-e ille"al pic!etin" by its members# o normally when union or employer breachs the code, it is because of the actions of the members, not the institution itself mana"er ille"al terminates, for e ample# o

 2atio:

often the institution will ar"ue that the indi*idual member acted without their !nowled"e and authori-ation, and so the union or employer should not be held liable# o the board does ha*e the 6urisdiction to find a union h as breached the Code where its members ha*e ne"a"ed in ille"al pic!etin", includi" where the union did not authori-e the ille"al pic!etin" union has responsibility to ensure its members don%t brea! the code# unions may be held liable in some circumstances for wildcat stri!es, for e ample# union not strictly liable, but must show it dischar"ed its obli"ations in the circumstances must ta!e steps to brin" the stri!e to the end where an ille"al acti*ity is en"a"ed in by the members, the union may be held to ha*e breached the Code if it fails to ta!e appropriate steps in the circumstances to brin" the unlawful conduct to an end as .uic!ly as possible# o where, as here, the unauthori-ed acts are so connected with the authori-ed acts that they may be re"arded as simply improper means of doin" an authori-ed acts# so where the strate"y of the union is close to a tortious conduct, it may attract liability for that condcut# so this is not true *icarious liability in a tort sense, but rather an obli"ation on unions to not only not authroi-e ille"al pic!etin", but to ta!e reasonable steps to pre*ent or end ille"al pic!etin"# (ere while the union did not authori-e the ille"al pic!etin", the board didn%t consider whether the union met its o*erall obli"ations in respect to the conduct so must ha*e a reconsideration o

while the BC definition of 9ic!et was struc! down in K,7art, the restrictions on pic!etin" still apply o in order to determine whether or not somethin" is a pic!et, loo! at whether the protesters called it a pic!et o and loo! at whether it is the !ind of beha*iour that people in BC would reco"ni-e as a pic!et o here it seems once it too! on the character of an /official pic!et/ it became one perhaps /si"nal effect/ is the !ey hereG =nions may be held /*iacriously/ liable for the actions of the members of their union o both where the unauthori-ed actions are so connected with the authori-ed acts that they may be re"arded as simply improper means of doin" an authori-ed act o and where the union fails to ta!e reasonable steps to pre*ent or end ille"al pic!etin"

*rince 4upert !rain Ltd. v. !rain Workers Bnion 2002 BCC8 )onald >8 1acts

=noin is bar"ainin" a"ent for wor!ers at the "rain plants in Jancou*er o this unit loc!ed out =nion also bar"ainin" a"ent for wor!ers in 9rince &eor"e The "rain that would ha*e been handled in Jancou*er is bein" handled in 9& 0hen "rain terminal in 9& reopened, union filed application for the terminals to be declared the same employers also set out a pic!et outside 9& plant, and handed out flyers employees in 9& did not cross pic!etline, so 9& business shut down# collecti*e bar"ain said that the employer did not e pect employees to cross the pcie!tline# ?mployer "ot an in6unction o T> who "a*e in6unction said no e*idence of criminal acti*ity, and that pic!etin" peaceful in nature o but was aimed at shuttin" down business# o followin" 9epsi,cola, issue for secondary pic!etin" is whether it is tortious o did this count as an interference with contractua lreations ;a tortG< or was the employer in the two cases so connected that this couldn%t be that tort# The heart of the case is that the employer alled"ed the Jancou*er =nion had induced a breach of the collecti*e bar"ain by causin" an ille"al stri!e in the 9& unit

8nalsyis the threshold .uestion for an in6unction is whether the applicant has raised a /fair .uestion to be tried/ o but where the in6unction is basically e.ual to the relief sou"ht, and particularly in pic!etin" cases, plaintiff must instead establish a stron" prima facie case# o T> should only assess in6unction on the merits where the ri"ht that is sou"ht to be protected can be e ercised now or ne*er, or where the result of teha pplication would impose hardship on the party so as to remo*e any potential benefit from proceedin" to trial so for in6unctions with respect to pic!etin", there will be a hi"h threshold, stron" prima facie case, for an in6unction o particularly accute since follow 9epsi,Cola pic!etin" has been rec"oni-ed as important e pression 9epsi,Cola o re6ects location as the important consideration, and so primary and secondary pic!etin" seen as e.ual o focus is whether there pic!etin" is criminal or tortious: /wron"ful action approach/ +o T> erred in as!in" whether the two employers were the same, since primary/secondary distinction no lon"er *alid o what is needed is that the applicant pro*e a wron"ful act before a court will 6ustify interference with the e pressi*e acti*ity# (ere the employer failed to pro*ide sufficient e*idence of the contractual relations with parties other than then union which would allow a tort to be found here, the employer cannot say that the union induced a breach of contract by pic!etin" when the employer a"reed in the *ery same bar"ain not to e pect employees to cross# since the emloyer did not show breach of a contract, the union didn%t induce a breach

but e*en if it did, inducement of breach re.uires unlawful means o but pic!etin" is not unlawful o peaceful persuasion is itself lawful o and the stri!e and pic!et from the Jancou*er wor!ers was lawful if the employer wants to alled"e coercion, it must show e*idence of a si"nal effect o the e*idence displayed no e*idence of coercion, threat, etc#

2atio basically an aplication of pepsi,cola o no need to distin"uish between primary and secondary pic!etin", since the focus is on the wron"ful act o and no wron"ful act, since the stri!e didn%t induce a breach !eep in mind that while this case comes out of BC, it is in a federally re"ulated industry, so does not stand for the proposition that 9epsi,Cola applies here in a broad sense#

Allies and E/Comm there is a difference between a business bein" an ally and simply actin" out of self, interest parties may act to help themsel*es, e*en if it hurts the union o e" a business can order a lot of in*entory in anticipation of a stri!e in order not to run out of supplies o only if the business could be shown to do this with the intention to undermine the union would we find an ally Basically the court is as!in" whether the Erd party has done anythin" that 6ustifies rachetiin" up the labour unrest

:ob Rights of $tri4ers Employee $tatus !uring a $tri4e ri"ht to stri!e not "ranted by the constitution, but implied from the statutory i"ht of employees to ta!e part in the /lawful/ acti*ities of unions, from the restrictions on when and how a stri!e can be effected, and from the prohibition of employer retaliatory action desi"ned to eradicate the union or punish stri!ers# o protection is afforded stri!ers when the stri!e is le"al# +omeone who is on stri!e is not held to ha*e been fired +ome pro*inces allow replacement wor!ers, thou"h no pro*inces allow the use of professional stri!ebrea!ers $n Bntario, may hire permanent replacement wor!ers after D months Temporary replacement wor!ers must *acate 6obs when stri!in" wor!ers return o le"al in all pro*inces e cept BC and Ouebec, which do not allow the use of any replacement wor!ers# o temporary wor!ers but not premanent replacement wor!ers in teh 1ederal 6urisdiction cannot hire temporary wor!ers in 1ed 6urisdiction when for an improper moti*e

2easons to allow temporary replacements o parallels ri"hts of union members to "et outside wor! o preser*es teh business o a*oids !noc! on effect on other business o e poses the true mar!et *alue of the labour in .uesiton 2easons a"ainst o a*oidin" *iolence o allowin" new hires upsets balance of power in fa*or of employer

4. v. '*4 .The 4oyal Gork 'ase2 ;13D2< Bnt# (#C# 1acts appeal of a pr*icial court dismissal of an unfair labour practice char"e o hotel sent out letters that re.uired employees to either accept new terms or resi"n, and if they didn%t, they would be fired# L28 said that no one can be deemed to ha*e .uit or been fired simply as a result of not wor!in" durin" a stri!e or loc!out#

8nalysis 7c2uerc this was an unlawful labour practice employees may be on stri!e and the employer cant stri!e them o e*en if some other employees are comin" to wor!# if this wasn%t the case, the employer could 6ust unilaterally aly down terms, and if the unoin didn%t li!e it, they would be deemed to ha*e .uit and lose all their pension ri"hts, insurance ri"hts, seniority ri"hts the prohibition a"ainst firin" occurs until the stri!e is resol*ed and the employees come bac! to wor!, the employee ta!es wor! with other employers, the employmee dies or becomes incapable of wor!

2atio >ust because you are not comin" to wor! durin" a stri!e or loc!out does not mean you ha*e .uit or been fired the employment relationship will continue until the stri!e ends, the employees mo*e on to other wor!, or the employees die/incapable of wor!

A)ter%ath o) 4oyal Gork decision upheld all the way to +CC in '*4 v. Ja%+ri ;13D2< o court found that the ri"ht to stri!e is implied by the act which said all persons free to 6oin union of their choice and participate in lawful acti*iteis since stir!in" is lawful, employee has the ri"ht under the L28 o obiter, Loc!e thou"ht that where the employer has replacement wor!ers, not necessary that the employees must be hired bac! on L28 allowed replacement wor!ers#

if the employer has no wor! for the struc! wor!ers too bad# $N some pro*inces the use of profession al stri!e brea!ers has been forbidden in Ouebec and BC e*en temporary stri!e brea!ers are not allowed 0here replacements allowed, the contra*ersial issue is whether the employer can maintian operations by usin" permanent replacements without committin" the unfair labour practice of refusin" to employ someone due to le"al acti*ities of union o so le"islators in ontario and manitoba added lan"ua"e ensurin" that the struc! wor!ers would ha*e their 6obs bac! $n Bntario you can hire replacement wor!ers after D months

'anada Air Line *ilotsC Association .'AL*A2 vs. $astern *rovincial A&rways Ltd. ;13@E< CL2B N+ 1acts )urin" lawful stir!e employer hired replacement wor!ers# when srti!e concluded, a"reement was that struc! wor!ers would return in order of seniority and seniority wouldn%t effect the replacemet wor!ers =nion claimed this *iolated the labour code, since it would mean the struc! wor!ers would only come bac! after the replacement wor!ers employer said that there is no "uarantee that employees will be renstate

8nalsyis Court basically a"reed with the union, brin"in" in new people and suspendin" priority ri"hts so as to cut out the unioni-ed pilots *iolates the section 1@A;E<;a<;Ji< of hte Canada Labour Code o can%t discriminate a"ainst a person because that person has participated in a le"al stri!e this is e actly what the employer was tryin" to do by puttin" terms suspendin" seniority into the new collecti*e a"reement

2atio you can%t put the union behind the replacement wor!ers in terms of positions or seniority since this is defacto hirin" permanent replacement wor!ers

8ftermath CLC ammended to say that struc! wor!ers must be returned to wro! in preference of any replacement wor!ers who started at the wor!place after stri!e started#

;iniASkool Ltd. ;13@E< BL2B baiscally there was le"islation which allowed wor!ers to come bac! indi*idually for the first D months of a el"al stri!e

The board held it was not unfair for the lawyer to prefer the employees who came bac! early to more senior employees who stuc! it out, as lon" as this wasn%t based on anti,union animus in a similar case, ShawAAl%eD Ltd. the employer couldn%t show that the feelin"s of loyalty was based on s!ills or somethin", so the board found animus# in ,ttawa 'it-en L1333M the employer filled *acancies followin" a le"al stri!e with the replacement wor!ers rather than those who had been on stri!e# o the employer was able to show this was based on competence rather than anti,union animus, so that was o!#

Replacement

or4er Laws

Ouebec has anti,stri!ebrea!er laws o durin" stri!e or loc!out, employer can%t use most !inds of employees to perform wor! o can only use mana"ers who were hired before the bar"aini" started so "reatly limits ability of the employer to !eep the business "oin"# o breach leads only to a non,bindin" report and e*entual prosecution, and the prosecution won%t resol*e until aftr the stri!e only true erelief in6uncit*e which doesn%t always wor! out for union o howe*er seems to ha*e wor!ed pretty well and now is well re"arded in Ouebec BC prohibits replacement wor!ers o includes people who ordinarily wor! at a diferrent site, or are transferred to the struc! location after the date notice to bar"ain is "i*en o unli!e Ouebec, BC allows stri!in" wor!ers to return to wor! e*en if the rest of the union !eeps the stri!e "oin"#

*aul Weiler #Striking a New Balance: Freedo% o) 'ontract and the *rospects )or Bnion 4epresentation# ;13@A< 3@ (ar*# L# 2e*# E41 0hy should we allow employers to !eep business "oin" durin" a stri!eG o maybe it shouldn%t "i*es employer bi" ad*anta"e at the bar"ainin" table means the wor!ers are not ma!in" money but the employer still is# most effecti*e a"ainst small, disad*anta"ed "roups of wor!ers# o but there are "ood reasons o permanent replacement wor!ers are not far, because they but at ris! the stri!ers 6obs and the possibility of collecti*e bar"ainin" in the future# not 6ustified by the le"itimate interests of the employers, most of whom can recruit e*en iwthout promisin" permanent positions# o but temporary wor!ers allow the employer to !eep the business "oin" e*en if its 6ust throu"h the use of mana"ement# But how does this relate to 8mericna labour law o the presumption is that deadloc!s at the bar"ainin" table should be resol*ed throu"h mutual economic pressure# if the employer can 6ust i"nore this pressure throu"h use of replacement wor!ers, the employer has a bi" ad*anta"e so should replacements be bannedG

o o o

no 1irst, ri"ht to hire replacememtn wor!ers reciprocal from employee%s ri"ht to find other wor!, alhou"h this is often hard for employees nonetheless if we needed both parties to feel the full effect of the stri!e to the "reatest de"ree possible, we would need to stop employees from "ettin" other wor!# bannin" replacement wor!ers would totally remo*e mar!et pressures from the employment wor!ers don%t want to insulate wa"es from the actual mar!et price unions shouldnt be able to set a floor below which the employer cannot ha*e its wor! done#

Seeking a Balance: 'anada La+our 'ode part / 4eview 133D Tas! force re*iewin" labour relations# employers feel that the obli"ation to bar"ain is o*er the terms of the employment relationship, and that there is a residucal ri"ht to "et the wor! done throu"h other means from the employees perspecti*e there is anentitledment to that particular 6ob o when someone else does that employee%s wor!, there is a feelin" that somethin" has been ta!en away# +Bme *iew the stri!e as a mar!et mechanism o if the employer can%t find replacement wor!ers at that price, they will be icnclined to raise its offer o if they can easily hire competent replacements, this will tend to wea!en union%s position others *iew the stri!e as basically a test of who can sur*i*e the lon"est without income o in that case, employers "et an unfair ad*anta"e by hirin" replacement wor!# o thou"h employers say it is open to stri!in" wor!ers to loo! elsewhere to wor! on the other hand, allowin" replacement wor!ers also in*ites a lot of *iolence into the relationship o scabs crossin" lines leads to a lot of *iolence employer says it shouldn%t be punished due to union%s bad beha*ior both sides ha*e some merit steps to reduce *iolence are definitely a "ood thin" and should be considered seriously o not always union%s fault either, sometimes scabs and mana"ement do pretty pro*ocati*e thin"s really it is the threat of permanent 6ob loss and tauntin" between sides that create the potential for *iolence one of the most important aims of labour re"ulation is to protect the inte"rity of the wor!er, no matter who creates the *iolence, wor!ers should not be e posed to physical harm or abuse ?mployers ar"ue that anti,replacement wor!er le"islation reduces in*estment o but there is little actual e*idence of this# there is no conclusi*e answer to whether anti,replacement wor!er le"islation len"thens or shortens stri!es# o one study found that there was little effect of this le"islation on the len"th or outcome of stri!es

a second study found that a ban on prelacement wor!ers led to lon"er stri!es and hi"her wa"es ?mployers are not all e.ually as *ulnerable to prohibition on replacement wor!ers o some can stoc!pile or reor"ani-e, some ha*e more competition than others, some ha*e e.uipment that needs constant attention o so impact of bannin" replacement wor!ers would be une*en# 8nyways only about a .uarter of conflicts result in the use of replacement wor!ers# o howe*er may still be a bi" bar"ainin" chip on the table some point out the lin! between use of replacement wor!ers and the desire to undermine the trade union and destroy its bar"ainin" a"ency o similar to the duty to bar"ain in "ood faith, it%s often hard to tell when the use of replacement wor!ers is moti*ated by a desire to undermine or destroy the union # o but labour boards are "ood at fi"urin" this stuff out# so on the whole, not "oin" to recommend a ban on the use of replacement wor!ers# o

8ftermath followin" report a few thin"s added to the CLC o can%t hire new wor!ers for the purpose of underminin" a union o must reinstate wor!ers after stri!e in preference to replacement wor!ers#

Alternati&es to $tri4es stir!es/loc!ous main en"ine to dri*e bar"ainin", but they are hi"h sta!es, and ha*e conse.ueces o a bit li!e trial by combat o and ha*e a bi" impact on public public sector wor!ers often ha*e their ri"ht to stri!e limited, sometimes to retain essential ser*ices but othre times to limit inflation or to reduce bud"ets#

Essential $er&ices Legislation There is a lot of concern that stri!es in certain sectors will put a lot of hardship on the public, particularly with respect to health care wor!ers o but not always easily to identify essential ser*ices where people will die absent ser*ice, pretty ob*ious +o they can be ordered bac! to wor!, and lots of industries ha*e had this done, includin" hte dairy industry and Ouebec constrution industry# ?mployers li!e to deal with essential ser*ices throu"h direct le"islation, whereas =nions prefer to !eep as much as possibl on the bar"ain" table this has led to inconsistent approaches accross canada o ie# 8lberta 6ust bans public ser*ice stri!es o others use a lot of ad honc le"islation to prohibit or end wor! stoppa"es o others "i*e ad6udicate tribunals the repsonsibility for re"ulatin" these stoppa"es, li!e BC and O=ebec in BC, the two sides try and decide to"ether, and if they can%t, the board decides that for them

Ouebec uses a speciali-ed essential ser*ices tribnal which has a detailed statute and its own 6urisprudence o has been successful in maintainin" the pro*ision of essential ser*ices# Both BC and Ouebec ha*e the employer and union at the center of the process by re.uirin" them to try to a"ree on what ser*ices are essential, and puttin" a lot of emphasis on mediation howe*er the "o*ernment is also able to simply declare thin"s to be essential +hape and structure of BC essential ser*ices pro*isions are outlined in Bukley (alley teachersC AssCn ;133E< o here the ris! that "rade 12 students would lose their whole year led the Board to find that the stri!e was threat to the /health, safety or welfare of the residents of BC/ within the meanin" of the code this was added in e pressly *ia ammendment /to pre*ent immediate and serious disruption of the pro*iison of educational pro"rams/#

;ichel !rant France 4acine, Services $ssentiels et strategies de negociation dans les services pu+lic /00/ Tribunal is mandated to loo! only at public helath and safety in the conte t of a public ser*ice stri!e# o does not aim at tryin" to conclude a collecti*e a"reement o if parties are unable to meet a"reement, union must put forth a list of the essential ser*ices which it proposes to perform durin" the str!e in practice, Conseil inter*enes once stri!e notice "i*en o then conseil assess ade.uacy of the proposed essential ser*ices o assesment of ade.uacy based solely on protection of public health and safety o if ser*ices inade.uate, it may ma!e reccomendation to the parties or to theminister, who can suspend the ri"ht to stri!e where it determines there is a dan"er to public safety or health# o Conseil can also ma!e in.uiry where the a"reed essential ser*ices are not complied with, and ma!e an order and "rant whate*er remedy it deems appripraite in li"ht of the harm to the public this le"islation has not affect the parties% bar"ainin" power, and wa"e increases reflect this# unions ha*e switched from ful on stri!es, to short rotatin" stri!es o this has len"thened the bar"ainin" process, which means that while union members are not losin" all their wa"es in these short stri!es, they are "oin" on lon"er#

Interest Arbitration normal way of bar"ainin" for esesntial ser*ices both parties ma!e submissions to the arbitrator who then sets the a"reement o may set the whole a"reement, or simply the clauses parties cannot wor! out themsel*es# desi"ned to replace the stri!e as the meachnism for resol*in" bar"ainin" disputes if the parties cannot a"ree, wor! continues and an abitrator will set the terms fo the future employment relationship usually mediation used first# ad*anta"es for union

o steady "ains, few pay cuts 7ay ha*e narcotic effect, may push up wa"es that, in the public sector, are paid for by ta es o arbitrator rarely concerned with "o*ernment%s ability to pay when unhappy with outcome, "o*ernment may simply le"islate it away Loren 1al!enber" /resolution of $tnerest )isputes/ 13@3

Allan *onak

"rowth of public sector unrest created new de*elelopments o "o*s# belie*e public sector wor! stoppa"es would put e teme burden on public combination of public and economic pressure from public sector unions would place too much power in unions% hands so alternati*e to stri!e neeeed# o arbitration' o sometimes ille"al stri!es still happen, but rarely o unions and employers ha*e more or less accepted bindin" arbitration but creates its own problems as well o reduces the li!elihood that parties will reach an a"reement on their own o whyG lower cost of disa"reement, the fear of "oin" to arbitratio nis less than the fear of a wor! stoppa"e threat of stri!e is a powerful inducement to settle while threat of arbitration is not# concessions made durin" bar"ainin" may pro*e harmful if abritrated settlement is e*entually re.uired# narcotic effect ne"otiators become accustomed to relyin" on arbitration# Kinds of arbitration in Kanada o con*entional arbitration board here%s submissions, then fashions a solution board permitted to accept union or employer position, split it down the middle, or create own compromise o 1inal Bffer +election arbitrator pic!s between employer and employee%s final positions, but may not adopt a middle position# o Choice of 9roceedures one of the parties ;in Canada, the union< can choose prior or durin" ne"oitations whether impasse will "o to stri!e or arbitration )ata clearly shows arbitration reduces the li!elihood of ne"otiated settlement as opposed to stri!e,based systems o but this may be a price that has to be paid for the o*erall public "ood# Chillin" and narcotic effects o chilin", the idea that parties won%t want to compromise durin" ne"otiation in order to impro*e the e*entual arbitrated settlement inconclsui*e whether this occurs o narctoic effect parties become dependent on arbitration o*er time# also e.ui*ocal as to whether occurin" use of interest arbitration is declinin"

o o

until 133E, crown employees in Bntario were co*ered by arbi"ration worried about risin" wa"es and the bud"et, the N)9 "o*ernment ended interest arbitration in fa*our of limited ri"ht to stri!e, with e tensi*e essential ser*ices re.uirements when conser*ati*e "o*ernment returned to power, further reduced ri"ht to strie

?a%es ,C!rady Ar+itration and &ts &lls ;133A< 8rbitration increases wa"es 8rbitrators pay little attention to the ability of the employer to pay, and little attention to /6ob .ueues/ or /.uit rates/ 8rbitrators compare the union wa"e to the industry wa"e, not to unora"in-ed wa"e o the arbitrator is aimin" to replicate a ne"otiated collecti*e a"reement o but this can lead to problems as more and more wa"es are determined by arbitration o *icious ciricle if the awards are themsel*es 6ustified by patterns of wa"es arri*ed at by settlement arbitrators attache little wei"ht to cost of benefits, or merit increments, or de"rees of 6ob security o probably fi ated on raw wa"eG arbitration rarely chosen by the parties to the collecti*e a"reement, esp# in the pri*ate sector o other than bac!,to,wor! le"islation and first,contact arbitration, pri*ate sector actors *ery rarely choose arbitration# o labour and mana"ement prefer the costs ansd conse.uences of a possible stri!e to the ucnertainties of an arbitrated settlement# 7andatory arbitratio nreduces the proportion of ne"iotiations that produce settlements# 8rbitrators are pretty conser*ati*e for non,compensation factors li!e seniority# 8rbitrators seem reulctant to alter man"erial practice as they are worried about unintended side effects o arbitration can%t really afford to be /inno*ati*e Compulsory arbitration in Bntario o wa"e determination should be made *ia free collecti*e bar"ainin" o where wa"e determination departs from this model, it may lac! le"itimacy, particularly where below the a*era"e bein" achei*ed in the rpi*ate sectors o don%t want employees to feel system stac!ed a"ainst them# o a"reements produced by third party are less lie!ly to be wor!abe, since the arbitrator is less familiar with the needs of the parties and has only a limited sta!e in the outcome this leads to a focus on measruabe wa"es and benefits# some issues the arbitrator may not be really able to sensibly deal with

#-E I"!I<I!.AL EM1L+=EE ."!ER C+LLEC#I<E %AR6AI"I"6 the indi*idual under the collecti*e bar"ain has no ability to ne"otiate with the employer

union must represent all the employees in the unit, but no employee can "o to employer him or her self# ?IC?9T$BN: in federal sector, indi*iduals can brin" a claim for un6ust dismissal to an arbitrator without the support of a union#

Introduction once a union "et ma6ority support it becaomes the e lcusi*e bar"ainin" a"ent and no one else is allowed to bar"ain on behalf of any of the employees in the unit# o ma6oritarian leads to e clusi*iety 7a6oritarianism and e clusi*ity ha*e often been attac!ed by employers, often under the "uise of protectin" idi*idual ri"hts o ma6roitarianism hinders new arran"ements li!e wor!s councils o pre*ents the creation of minoirty unions o ma6oritariansim impairs the freedom of 8ssociation of the indi*idual wor!er so how can we accomodtate in*idiual and minoirty ri"hts within the e istin" structure

1rimacy of the Collecti&e Agreement %argaining with other .nions or Indi&idual Employees Bnce union is ma6ority and reco"ni-ed bar"ainin" a"net, employer may bar"ain with no one else# o not e*en the indi*idual employees# o no room left for pri*ate ne"otation between employer and employee the blan!et prohibition on e ternal bar"ainin" a uni.uely North 8merican phenomenon o some, li!e artists and professional athlets, call this principle into .uestions

#he Eclipsing of the Indi&idual Contract of Employment ;cgavin Toaste%aster Ltd. v. Ainscough L135DM +CC 1acts employees "ot se*erance due to plant closure under bar"ain company decided to close plant in response, employees went on ille"al stri!e plant closed, but employer refused to pay se*erance o claimed that the employees had repudiated the collecti*e bar"ain#

8nalysis,Las!in =nder the current collecti*e bar"ainin" re"ime, it ma!es no sense to tal! about indi*idual contracts of employment, and to treat the collecti*e bar"ain as a "roup of indi*idual bar"ains o there is no room left for pri*ate ne"otiation between indi*idual employees and the employer Collecti*e bar"ain entered into between a union and an employer is binidn" on the union, employer, and employees co*ered tehreby#

Common law of indi*idual employment no lon"er rele*ant, especially where e*erythin" is co*ered by the collecti*e bar"ain# Bar"ain co*ers terms of employment and has union recon"i-ed as sole bar"ainin" error so repudiation and fundamental breach will only be rele*ant, if at all, in the conte t of the whole collecti*e a"reement 2epduiation and fudnamental breach may not be in*o!ed w/r/t colelcti*e a"reements that are remainin" acti*e and where the duty to bar"ain collecti*ely subsits# (ere it was open for the company to ta!e actions a"ainst participatin" in a n unlawful stri!e, and indeed there may e*en ha*e been "rounds for dischar"e o but here, the company is ar"uin" that in effect the employees had .uit their 6obs# o but this is clearly not what employeres were doin" o unlawful stri!e did not per se terminate the employer,employee relationship

2atio common law employment and contract doctrines are ousted where a collecti*e bar"ain e ists indi*idual employment b/w employer and employee is superceded by the collecti*e bar"ain you cannot thin! of a collecti*e a"reement as a bunch of indi*idual contracts that can be repudiated, frustrated, etc#

#he 1re/Eminence of 6rei&ance Arbitration parties to the a"reement may see! to characteri-e and issue as outside the umbrella of the collecti*e a"reement to allow access to courts rather than arbitrators but courts ha*e tried to foreclose this as much as possible# the only e ception is where the parties ha*e made indi*dual contractual arran"ements prior to enterin" into the employment relationships o here the employee may enter a ci*il action indepedent of the union in order to enforce this ri"ht#

Allen v. Al+erta L200EM +CC 1acts ) boiler inspectors o collecti*e bar"ain allowed for se*erance pay "o*ernment decided to pri*ati-e, and would ha*e been obli"ated to pay se*erance instead the union and "o*ernment ne"otiatied written a"erement whereby the wor!ers would be offered 6obs with the new pri*ate operate# o if the employees accepted, they would lose all their ri"hts under the collecti*e bar"ain o the written a"reement said this was not under the collecti*e bar"ain and so was not "rei*able years later, the boiler inspectors claim their se*erance under th collecti*e bar"ain#

8nalysis , Lebel

disputes arisin" out of the application or *iolation of a collecti*e a"reement should be dealt with e clusi*ely under the "rie*ance procedure established in accordance with the a"reement or the rele*ant labour le"islation o where a dispute falls under the collecti*e a"reement, the courts do not ha*e 6urisdiction o*er them# with respect to a "roup of employees, the bar"ainin" a"ent has e clusi*e bar"ainin" ri"hts o the a"reement bind the union employees and employers# in cases which attempt to determine who has 6urisdiction, the .uestion is fle ible and conte tual and aimed at whether the essential character of the dispute arises from the interpretation, application, adminsitration or *iolation of the collecti*e a"reement# That bein" siad, only disputes that e plicitly or inferentially arise out of a collecti*e a"reement are foreclosed to the courts# where the dispute arises e plicitly or implicitly from the interpretation or application fo the collecti*e bar"ain, it is under the e clusi*e 6urisdiction of the arbitrator# this issue related to se*erance which was under the collecti*e bar"ain o the written a"reement did not chan"e the le"al situation of the parties# o if se*erance had been e tin"uished, this was for the abitrator anyways#

2atio this !ind of dispute about the content of a collecti*e bar"ain needs to "o to arbitration, not a re"ular court consider: indi*idual employees can%t "o to arbitration without the support of the union, and the union is not "oin" to "rei*e about a pro*ision it itself ne"otiated#

#he !uty of Fair Representation union%s e clusi*e bar"ainin" ri"hts and its correspondin" duty may help it accomodate the di*erse wor!ers int he worplace o unions sur*i*al depends on its ability to resol*e differences in a hetero"enous wor!place# primary mechnsim of ensurin" that the union fulfills this role is the duty of fair representation e*ery piece of labour le"islation says that unions ha*e a duty to fairly represent their members o can be enforced by a complaint to the board from an indi*idual employee applies mainly to the interpretation of the bar"ain, but in some pro*inces, li!e BC, also applies to the ne"otiation of the ar"ain applies to all members of the unit, whether they are union members or not o as lon" as the union is the bar"ainin" unit, it owes the employee a duty of fair representation mostly a procedural ri"ht o the union must hear your claim and treat if fairly, but that%s it o the union has no ri"ht to ta!e the "rei*ance, and in BC, you ha*e no ri"ht to pursue the "rei*ance indi*idually Nash 4ailroad 'o. =+ ;13AA<

Steele v. Louisvill

1acts =nion of train wor!ers was e clusi*e bar"ainin" a"ent blac! employees not allowed to be members new collecti*e a"reement restricted ratio of blac! employees, and limited their seniority and employment opportunities 9 sued for in6unction a"ainst the colelctie*e a"reement, and dam"es#

8nalsyis , +tone Contress did not intend that the union be able to sacrifice the ri"hts of the minoirty for the benefit of the union members# The or"ani-ation chosen to represent the wor!place must represent all members, not 6ust the ma6ority, and must act for those members Con"ress imposed a duty to fairly e ercise the power confrerred on the union on behlaf of members, without hostile discrimination a"ainst some of them# )ifference in the terms of contract based on rele*ant purposes w/r/t th epurpose of the contract is BK, li!e seniority, performance stuff, and so on# o not e*eryone is e.ual in interest or merit o But con"ress did not intended irrele*ant discrimintations based on race alone# +o the discriminatin" union may be denied the benefits of the discriminatinon the union is re.uired to consider re.uests of non,union members of the craft and !eep their *iews in mind at the bar"iainin" table )uty imposes a union to represents all of its members, and allows in6unction and damaa"es where appropriate

2atio part of the )12 is to not discriminate a"ainst members of the unit that are not part of the union union must represent all employees, re"ardless of their position with respect to the union#

#he !e&elopment of the !uty of Fair Representation in Canada Ti% 'hristian /The )e*elopin" )uty of 1air 2epresentation/ ;1331< )12 is the ne t of conflict b/w indi*idual ri"hts and collecti*e ri"hts collecti*e bar"aiin" based on e clusi*ity and ma6oritiarism, and is thus aimed at utilitarianis7: r"eatest "ood by satisfyin" the "reatest number o )12 is a chec! on this ma6oirty rule# Two *iews of the role of the unioin in resol*in" indi*idual "rei*ances o =nions out to pre*ail , 8rbcibald co o allowin" indi*iduals to ad*ance claims to arbitration would impeded labour relations undermine unions role in de*elopin" the rule of the plant undermine the presti"e and authority of the the union dissension and competition "i*es incenti*e to settle claims early, leadin" to more arbitrations and uncertainity

difficult to distin"uish between claims that could be brou"h by indi*idual and union# o Co thou"ht allowin" indi*idual "rei*ances would bear too hi"h a cost for protectin" indi*iduals from arbitratry union offiicals# o Co called for )12 instead of indi*idual access to the arbitration process Bpposite *iew is Clyde +ummers o poited out purpose of bar"ain not 6ust to stabilii-e industry but to mipor*e benefits for indi*idual employees since unions can fail to do so in a number of ways, arbitration system ou"ht to accomodate indi*idual claims# bar"ainin" not 6ust about securi"n collecti*e needs, but impro*in" the di"nity and owrth of the indi*diual no reaons to fear that collecti*e bar"ainin" is so fra"ile that it could not ad6ust to a recon"ition of indi*idual ri"hts# 0eiler too! a middle class o only those interest whihc are critical to an indi*idual%s employment status and which do not en"a"e collecti*e interests should be purusable to aritration by the indi*idual o this is because the impact on the idi*idual is so hu"e that any inco*neince to the union is outwei"hed and the indi*idual could be made to bear the costs of arbitration, which further wea!ens the effect of the union# o especially with respect to termination, there is little point to ar"uin" that the indi*iduals ha*e no ri"ht to pursue claims to arbitration re"ardless of whether critical 6ob interests are in*ol*ed# Le"islation in most pro*inces re.uire the duty of fairness to be restricted to the administration of the collecti*e bar"ain, rather than to the bar"ainin" itself o howe*er, BC, Bntario, and Ouebec re.uire that unions obser*e the duty in the conduct of bar"ainin" as well, thou"h there is minimal scrutiny here# o normally what is re.uired is a modicum of procedural rather than substanti*e fairness needs and *iews of employees should be can*assed, but need not be followed necessarily# $n the administration of the collecti*e bar"ain, there are a few re.uirements for )uty of fairn rpresentation o union must in*esti"ate facts of "rei*ance o hear "rei*ors *ersion of facts o ma!e an unbiased assesment of the merits, inform the "rei*or of steps bein" ta!en, see! "rei*ors a"reement for any settlement, and ob"atin such assistance as is reasonable "i*en the seriousness of the loss and the resources of th e union# o howe*er, if these !inds of steps are met, the union is not under any particular obl"ation to ta!e the matter to "rei*ance# 7ost )12 is now in statute and so enforced by the labour boards, but where left to common law may be enforced by the courts o courts will only award monetary relief, while boards ha*e more possible remedies#

#he !uty of Fair Representation in the Administration of a Collecti&e Agreement 4ayonier 'anada 5B'7 v. &nternatinonal Woodworkers o) A%erica L1354M BCL2B

1acts ?mployee 8 complayed that 9 had *iolated the collecti*e a"reement by denyin" him seniority under that a"reement, and that the union had breached )12 by not carryin" his resultin" "rei*ance to arbitration# +awmill was a di*ision of 2ayonier o ?mployees represented by $08 Basically this was the cases where union and mana"ement had a standin" arran"ement where senior wor!ers who had been laid off and found interim 6obs could refuse to come bac! without losin" seniority, so that if it loo!ed li!e the mill would only need them for a day or two, they woudln%t ha*e to lea*e their other 6obs# 8 says this denies his ri"ht to sneriority, since teh more senior employee would !ic! him out o but the union !nows and appro*ies of the arra"nement, so union decided to drop 8%s "rei*ance#

8nalysis does the refusal of the union to brin" the "rei*ance constitute a *iolation of the )12G 0hat does the )12 meanG o it means the union may not be acti*ated by bad faith personal hostility, political re*en"e, etc o no discrimination or fa*ouritism# o =nion cannot act aritrarily But in a concrete sense, does a uion ha*e the authority to refuse to press a "rei*ance that the indi*idual employee wants to ha*e proceeded with# o employees come to feel as if they ha*e certain ri"hts, and the e pectation that these ri"hts will be secured o if the employee feels his ri"hts ha*e not been respected, he wants a neutral forum to obtain a remedy# o the employees ri"ht in a unioni-ed wor!place is only to ha*e the collecti*e bar"ain followed until lawfully chan"ed# o some ar"ue union should not be free to disre"ard "eneral rules for particular cases but most disa"ree The conclsuion is that unions retain control o*er "rei*ances allowin" unions to settle "rei*ances short of arbitration a*oids frii*olous "rie*ances, and ensures both sides can address ma6or probems in the a"reement# o protects the interest of the union as a representtati*e of the wor!eres so an idi*idual wor!er does not ha*e an absolute ri"ht to ha*e the "rei*ances arbitrated o collecti*e bar"ain not 6ust about inforcement of indi*idual ri"hts, but also abouut the collecti*e "roup interests, which the union represents e*en a"ainst certain indi*iduals union must ha*e power to setltle or drop cases that ha*e limited chance of sucess o allows union to preser*e limited resources o plus, if e*ery "rei*ance fou"ht, the employer would probably do the same in an attempt to wear down the union settlin" fri*olous claims shows the employer that the union is reasonabe#

many disputes also in*ol*e other union members o disputes between union members should be dealt with face,to,face +ome factors that cumulati*ely su""est that a "rei*ance should be brou"ht or settled o indi*iduals interest in the sub6ect matter of the "rei*ance ;how critical is it< o facial *alidity of the claim, both in terms of lan"ua"e of a"reement and a*ailable e*idenceG how carefully has union in*esti"ated thisG o 2easonable e pectations/past practice o are the interests in the union or amon" other employees that are contrary to the indi*iduals% position#G $n this case the a"reed upon practice was a si"nificant benefit to the bar"ainin" unit# o and the interest of the other, more senior employee was particularly acute since if 8 won, the other employee would lose years of seniority o the $08 was understandably reluctant to undercut the other employee li!e that# (ere while 8%s ri"ht was o*erriden, it was done so to ad*nace the more pressin" needs of other employees o ) had no clear ri"ht under the a"reement and it%s history of appliaction, and no firm e pectation#

2atio outlines some of the content of )12 $t%s basically a duty to ha*e a thou"htful, non,discriinatory decision ma!in" process =nions must be able to drop cases that aren%t li!ely to succeed, or where there is a conflict between members 1actors to consider o the critical nature of the "rei*ance to the employee o the li!ely *alidity of the claim o past practice in this type of case reasonable e pectations about this !ind of case o conflicts within the union#

'rewdson and Ste+elski v. &nternational Bortherhood o) $lectrical Workers ;1332< CL2B Board on "uard for collusion between the employee and the union# where 9 complains to union and arbitrator finds in fa*or of 9, that can "et around the normal time limits on arbitration o so don%t allow "uilty pleas in this !ind of situation#

*arry Sound Social Services Ad%inisrtation Board. v. ,ntario *S$B 200E +CC "rei*ance arbitrators ha*e the 6urisidction to hear and decide "rei*ance that deal with other statutes "o*ernin" the employment relationship, includin" (28 where a fundamental statutory ri"ht is at sta!e, the union probably has a hi"her duty to ta!e it to arbitration#

-uman Rights Act and the Collecti&e %argain

now an assumption that the terms of the (28 are implicitly inside the collecti*e bar"ain and cannot be bar"ained out of o duty to accomodate is thus inside the bar"ain This stops the union from beha*in" in discriminatory ways, and allows the Board to consider the (28 directly (owe*er, may lead to conflicts between the union and the indi*idual employees, with respect to thin"s li!e seniority o often the most comfortable 6obs are reser*ed for the most senior employees but if someone is disabled, they mi"ht need to "o to that 6ob as a part of the duty to accomodate# o sometimes se ual harassment as well, since both the *ictim and the harasser are li!ely part of the union $t is probably true that where human ri"hts interests at sta!e, the duty to accomodate is particularly acute

<.@. v. '$*. ;1335< +as! L2B 1acts K refused to under"o independent medical e amination re.uired by employer due to the problems he had been ha*in" with co,owr!ers o K had depression, but disa"reed on how to treat it =nion did not ta!e K%s "eri*ance to trial, includin" when he was dismissed, because they belie*ed K shold ha*e submitted to independent e amination Labour act prohibited from union actin" in a atrbitrary, bad faith or discriminatory way

8nalysis !ey .uestion is whether union treated K in a discriminatory way in unioni-ed wor!place, union has a duty to accomodate unions can be parties to discrimination either by collaboratin" in the institution of the rule with th e ad*erse effect, or by ta!in" a poisiton which would constitute a barrier to efforts by the employer to ameliorate a discriminatory practice under +as!etchean (28 employer may impose le"itimate occupational re.uirements o so may use B1B2 as a defence to discrimination but =nion has seperate duty not to discriminate, without such a limitation duty to accomodate is rele*ant in determinin" whether union must adapt normal policies in order to a*oid the discriminatory impact which usual policies ha*e on the protected class in other words, union may be re.uired to adopt different practices with respect to some employees in order to a*oid discriminatin" a"ianst them# the !ey .uestion here is whether the union policy was discriminatory, and whether that discriminatory effect could ha*e been reduced by reasonable measures clearly K sufferin" from a mental disorder o union responded to K%s problems *ia a series of "rei*ances o they followed a ti"ht procedure with a hi"h de"ree of structure, record !eepin", and appeals# o e*eryone in*ol*ed was e perienced and profesional o howe*er they failed to ta!e into account that K was disabled

so while the process was o! with respect to most employees, it was not sufficient to protect the particular situation of K, and had a differential impact on him# (ere the union did not .uestion the need for indpendent medical e amintion, or whether pro"ressi*e discipline made sense with respect to K 0hile unions may be limited, includin" in terms of resoruces, 6ust li!e e*eryone elsethey must come to terms with the concept of discrimination# by limitin" the scope of the "rei*ance and by acceptin" the employer%s position w/r/t pr"ressi*e dsicipline, and by allowin" the employer%s )r# to determine K%s fate, the union used the "rei*ance procedure in a way which had a discriminatory effect on K due to his mental disability# it would not ha*e put an unreasonable burden on the union to !eep the "rei*ance "oin", and to insist on a consideration of the case of K as a whole# clearly it was hard for K to wor! within the e tant system as a result of his disability o he really needed some !ind of special mechanism# The union was not bad here, and approached their duties in "ood faith and were reasonably concientious but in the end the union failed to ta!e sufficent account of the disability e perienced by K#(#, and that they therefore discriminated a"ainst him in handlin" his "rei*ances# o

2atio while a unoin may ha*e impeccable procedures that are appropriate for most employees in assessin" "rei*ance, the duty to accomodate applies here as well this means that the union had a duty to accomodate the employee%s illness in assessin" whether or not to !eep the "ei*ance "oint#

Fri&olous !FR Cases )12 claims rarely successful o possibly because the standards are too hi"h o but also, unions ha*e !een interest in respresentin" employees fairly, and they ha*e little incenti*e to attac! indi*idual employees it is free to brin" a complain for many employees it may be the only thin" they can do if they don%t thin! the =nion was fair o particularly if they were terminated where the union refused to "rei*e, since can%t e*en claim wron"ful dismissal under the common law

Tho%as <night, #4ecent "evelop%ents in the "uty o) Fair 4epresentation: 'urtailing a+use in B'# 133D,1335 hi"h number and low success rate of )12 complaints has prompeted concerns about waste of time *ia fri*olous complaints some 6urisdictions, li!e BC and Bntario, ha*e adoped cresenin" mechanisms B*erwhelmin" number of )12 complinats are re6ected, and many people use hte claim ;or threat of claim< as a tool to ad*ance their interests o )12 claim may be used as le*era"e

this tactical use was leadin" a lot of "rei*ance to "o forward where the union would probably rather settle or drop +o complaints are "rowin" pretty rapidly, but a tiny percenta"e of them are successful# BC 7inister of Labour appointed a committee to deal with this issue o committee found that tribunals need to be able to .uic!ly ad6udicate )12, otherwise the union may proceed with a "rei*ance 6ust to a*oid the cost of defendin" a )12 challen"e, howe*er unmeritorious o may be cheaper to run throu"h "rei*ance process than )12 process o +o we need a new process by which the Board could effecti*ely ad6udicate fair representation complaints without re.uirin" submissions or holdin" hearin"s so s# 1E of the code allows the L2B to ma!e a prima facie determination of whether the complained of act contra*enened the )12# o creates a filter a"ainst unmeritorious complaints to promote a faster and cheaper resolution of disputes no e tnesi*e case law, but the L2B is reinforin" a prima facie standard, sendin" a si"nal that complainants must brin" forward more than their own opinions and insinuations of misconduct +ince the imposition of s# 1E, rou"hly half of the complaints dismissed were done so at the prima facie case, e*en thou"h the number of cases dismissed has actually fallen# o and, more importantly, many many more complaints were abandoned by complainants o probably out of a reco"nition that their complaints were "roundless# new fi"ures support this o ther number of complaints continues to increase, but many of them are bein" filtered out by the prima facie test, and the number of complaints not proceeded with remains hi"h#

.nion $ecurity 1ro&isions and the Role of .nions in $ociety =nion membership is an important way people e press themel*es in society, apart from its role as a tool to impro*e wor!er welfare o unions traditionally play a role as ci*ic participants =nions are hi"hly politically acti*e in Canada, and support a wide ran"e of political causes o support worth causes locally, nationally and abroad, whether or not directly related to employment conditions N)9 traditionally the party of labour, but this has been disol*in" o public support for unions declinin" o union members *otin" for more other parties o N)9 "o*ernments ha*en%t always deli*ered ;Bntario< 2i"ht win" "roup supported La*i"ne in his Charter Challen"e

.nion $ecurity Clauses Joluntary chec!,off o employees don%t ha*e to 6oin or pay dues, but members can choose to ha*e dues paid directly from pay chec!

o low security 2and 1ormula o employees are not re.uired to 6oin the union, but must pay dues directly from paychec! =nion shop/closed shop o employees must be union members to wor! in the closed shop# 2;d< may protect a ri"ht not to associate where the association results in ideolo"ical compulsion o typically *ery hard to do, must show reli"ious or pricnipled ideolo"y to use this

Lavigne v. ,ntario *u+lic Service $%ployees Bnion L1331M +CC 0ilson 1acts La*i"ne teaches in a community colle"e with a 2and formula, and di not 6oin the union he said that the use of the funds for purposes other than collecti*e bar"ain ;li!e support of N)9, etc< was a *iolation of his ss# 2;b< and 2;d< ri"hts#

8nalysis,0ilson charter does apply to community colle"es, althou"h not uni*ersities no ri"ht *iolate, he can say what he wants when wants to, doesn%t ha*e to support the union at all but the whole point of the 2and 1ormula is that employees must pay e*en if they don%t want to# La*i"ne says forcin" him to pay dues is only rationally connected to the ob6ecti*e of industrial peace in as much as the dues are used for collecti*e bar"ainin" o use of funds for other purposes does not help industrial harmony o so the pro*ision is o*er broad# this ma!es little sense o political causes often ha*e immedate and direct impact on union and wor!place# o clearly union has an interest in the outcome of political dispute# anyways the role fo the union is not restricted to narrow economic functions# o interests of labour do not end at /economic/ o employment ta!es in sesne of idetity, self,wrth, and emotional wellbei"n: labour is not a commodity# o not 6ust economic interests at sta!e, but also the interest of wor!in" people in preser*in" some di"nity in their wor!in" li*se infrin"ment of any ri"ht here is iminal o union can only "et 2and 1ormula with ma6oirty support o no one is re.uired to 6oin union o bar"ainin" a"ent re.uired to represent e*eryone, whether member or not o members of union may ta!e a *ote to decertify so this is a fair comprimise

o o 2atio

union has a lot of authority o*er the bar"ainin" unit, but also a lot of responsibilty plus, this is a dmeoncratic institution, not the hea*y hand of "o*ernment

bein" re.uired to pay union dues that "o to political causes does not *iolate s# 2;b< this is a fair compromise by respectin" unions that ha*e "otten ma6ority support and are re.uired to protect all employees, and the ri"hts of the indi*idual o indi*idual not re.uired to 6oin, 6ust pay, and may decertify, so no 2;d< lea*es open that 2;d< mi"ht include a ri"ht not to associate

La1orest wants to loo! at the ob6ecti*es of the statute 1irst, ma!in" sure the unions ha*e the resources and mandate to play a role in shapin "the politica, economic, and social conte t of the labour relationship o the balance of power between union and mana"ement is a product of many factors, includin" "o*ernment policy o many thin!s li!e ta es, re"ulations, other policy issues may upset this balance of power o the rand formula is intended to "i*e the union sufficient resources in order to deal with this chan"e, this e plains why money is colelcted Bther ob6ecti*e is to contribute to democracy in wor!place o if the ma6ority in the nation could limit the uses to which unins could put money, and union couldn%t ha*e a role in taht process, clearly a problem o union needs to be able to participate in that process o this is why union is allowed to sepnd the money on thin"s unrelated to the collecti*e bar"ain

La1orest,2atio 2 purpose of 2and 1ormula o ma!es sure unins ha*e the resources to play a role ins hapin" politics and society o contributes to democracy in wor!place

4. v. Advance 'utting and 'oring Ltd. L2001M +CC Lebel 1acts Ouebec passed a law in response to a lot of Bntario wor!ers comin" to Ouebec to wor! in construction industry o Bntario passed /1iarness is a two,way street 8ct/ in return law made it so wor!ers had to unioni-e, and had to chose one of fi*e unions moreo*er, it was partically impossible for Bntarioans to 6oin any of these unions# se*eral firms were con*icted of hirin" non,union Bntario wor!ers +uit brou"ht under ri"ht to associate

o specifically, ri"ht not to associate Jery complicated 6ud"ement o L%(ereu )ube thou"ht there was no ri"ht not to associate a"ainst purpose and scope of freedom to associate, which was about the collecti*e pursuit of common "oals# o other 6ud"es split in weird ways o Bastarache and 7clachlin and 6ma6or and binnie found a *iolation which could not be supported under s# 1 scheme represented a form of ideolo"ical coercion mere fact that wor!ers were re.uired to participate in and support a system of state,sponsered and forced association was enou"h history of problematic labour relationship was not enou"h to 6ustify also not impressed that the certificates which allowed indi*iduals to choose a union were "i*en out on the basis of re"ion and past employment Lebel wrote ma6ority, which was concurred with by E others# Because L%eheru )ube a"reed in outcome, it was ma6ority, e*en thou"h Lebel )$) belie*e there was such thin" as a ri"ht not to associate#

8nalsyis Lebel 8ct imposes an obl"iation to 6oin a union, but "oes no further than that o boils down to a the obl"iation to desi"nate a collecti*e bar"ainin" representati*e, to belon" to it for a "i*en period of time, and to pay union dues o also protects a"ainst abuses by prohibitin" any direct control o*er the industry no union halls, no dicrimination between members of different unions, specific "uarantees abotu discrimination in statute# so act doesn%t impose anythin" on wor!ers other than the bare obli"ation to be part of a union# no mechanism to enforce ideolo"ical conformity =nions do of course inter*ene in political causes, but not in a unifrom or partisan way# o nor is it clear that they ha*e much control o*er their members o can%t ta!e 6udicial notice of the fact that unions ha*e a constant or consistent ideolo"y# $ndeed, the obli"ation created by the le"islautre addresses a critical need about the lac! of participation in the life of unions in the construction industry o 2and formula mi"ht not ha*e been enou"h here o in some ways, this is better, while member must be part of the union, he or she also "ets to influence the union from within =nion members are indepednent from union and are not bound by any ideolo"ical conformity in the end there is simply no e*idence to su""est that Ouebec unions are ideolo"ically coercin" their members o simply an anti,union stereotype

2atio

Bascially ma6oritycomes to the conclusion that the freedom of association does include the ri"ht not to associate o le"islation that compels you to associate may *iolate 2;d< o but the association must ha*e some idelo"ical compulsion otherwise 2;d< is not impacted# But enou"h support it that it could be sa*ed under s# 1

8nalsyis Bastarache 1undamental *alues that must be protected in the wor!place include freedom of conscience, mobility, liberty, freedom of e pression, and ri"ht to wor! # o reflected in =N documents Can%t pretend that unions and the labour mo*ement don%t ha*e any ideolo"ical causes# unions can be a powerful force in public debate, but this re.uires that they are democratically constituted in accordance with s# 2;d< where*er unions promote a political cause, there are idelo"ical constracints on members, e*en where there is no direct e*idence of coercion o most people ha*e no choice but to wor! o here those people aren%t only bein" re.uired to support the union financially, but to actulaly 6oin the union# 7uch more se*ere than in the Lavigne case# the certificate system forces people to 6oin the union, forces them to meet certain standards, and is based on re"ional .uotas o strictly reduces the ability of non,Ouebecers to wor! in the industry can this restriction of 2 ;d< be 6ustified under s# 1G structured collecti*e bar"ainin" and competency re.uirements may be *alid ob6ecti*esH but here there real moti*iation seems to be re"ionalism# o re"ional re.uiremetns ha*e little to do with assurin" competency# re.uirements li!e bein" a Ouebec resident, ha*in" wor!ed a set number of hours in the prior year, and bein" under 40 years old has nothin" to do with assurin" competency o so no rational connection# nor is it minimally impairin" o there were other options, li!e a 2and formula, that would ha*e allowed collecti*e bar"aini" to continue without the re.uirement that wor!ers actually 6oin a union# o could ha*e allowed members to pay fees to a /collecti*e pot/ without 6oinin" a union#

Employment $tandards Legislation Introduction $n e*ery 6urisdiction there are minimum terms and conditions of employment,/floor of ri"hts/ o cannot normally be undercut by contract of employment of collecti*e bar"ain# o may be able to "et better deal, but canno contract for worse o set out in a *ariety fo statutes &o*ernment has increasin"ly step in *ia a wide ran"e of law which purusue *arious, and sometimes conflictin", policies#

$nclude minimum wa"es, payin" wa"es when due, brea!s and rests, etc# o focus in this chapter with be hours of wor! and o*ertime o minimum wa"e o dismissal for economic reasons and misconduct by employee# 9articularly important to the non,unioni-ed, since this may be their ownly protection +tatutory floor a response in part to the reality of ine.ualty of bar"ainin" power in the employment relationship o these !inds of stauttory standards may be the only realistic way for lower, le*el employees to protect their ri"hts, but enforcement is often difficult# +tandards party a response to the increasin" post,002 emphasis on the di"inty and autonomy of hte indi*idual, but ti"hter economic conditions ha*e forced employers to become more efificent o some ha*e pressured "o*ernment to roll bac! pro"rams and protections# employment standards also rele*ant to unions o unions may not be able to bar"ain for anythin" more than the terms and conditions than those re.uired by statute o may be faster and easier ie# helath and safety re"ulations# norms established *ia collecti*e bar"ainin" may e*netually find their way into the le"islation how do you enforce these stadnardsG o a""rei*ed apply files a complaint with the ministry of labour o then a mediatio nwill be attemted, and if it fails, a decision made o where breach of the statute employer may be re.uired to indemnify the employee these deicisions are bindin", sub6ect only to >2 by courts .uasi criminal sanction may be brou"ht dependin" on the 6urisdictiion, and with the assent of the 8& or minister# But enforcement remains difficult, since employees may be afraid of retailation, reali-e there is little chance of the complaint succeedin", and may be aware that the remedy will probably be relati*ely minor# o small claims may be an option Bntario unpaid o*ertime class actions $mportant to unions as well, since it pro*ides a startin" point ;and perhaps endin" point< for bar"ainin"# o complaints that the employer has *iolated these stndards may "o to "rei*ance arbitrator a few labour relations acts allow unions to "o below the statutory minimum as a sort of bar"ainin" position o horse tradin" o *ery contra*ersialH how basic are these ri"hts if they can be ne"otiated out ofG ?mployment standards act may e clude certain professions alto"ether o must chec! the re"ulations and the act before determinin" whether a "i*en employee has those ri"hts employers may also apply for *ariance o commonly applied for and "ranted, often with respect to a*era"e hours o*er two wee!s issue of whether someone is an employee coimes up here as well, and is once a"ain focused on control

who determines the terms of employment, ta!es on ris!/profit

Employment $tandards Fact 1attern 0oman hired to "i*e care 2A hours/day, A days a wee! o paid for 1E of those hours at minimum wa"e, the rest unpaid on call o statutory definition of li*e,in wor!er doesn%t fit +itters are e plicitly e empted from the statute ?mployee thus wants to be found not to be a sitter, since then she will need to be paid for all her time, and "et o*ertime o the person needin" care can%t pay for this o but why should the empoyee be e cemptG ?mployment standards officer found her to be an employee, but this was re*erse on appeal o she was found to be a sitter, so "ot no benefits#

4oy Ada%s #$%ploy%ent Standards in ,ntario: An &ndustrial 4elations Syste% Analysis# ;13@5< 9rocess for complaint o employee complains to employer, and 7inister may pro*ide ad*ice o the claim in writin" made to ?mployment +tandards o Bfficers attempt mediation o $f not, Bfficer tha!es "re*ance,arbitrator,li!e role and attempts to decide the issue o if in fa*or of employee, an order issued to that effect with a financial penalty attached ;pretty small<# )oes it actually wor!G Not *ery well# 7ost complaints arise out of se*erance, wantin" money owed to the employee o ?mployment +tandards Branch actually operatin" much li!e a collecti*eth a"ency )ispute procedure has pretty stron" possible penalties, but these penalties are practically en*er used# Jictimi-ation of complainin" wor!er common, basically because the ministry is not *ery subtle o on complaint, it then "oes to the wor!place to i*nesti"ate pretendin" to be doin" a /random spot chec!/# but true random in*esti"ations are super rare, so the employer li!ely !nows there is a whistle blower# so really no effecti*e recourse for non,unioni-ed employees# $s the employment standards branch at least an effecti*e collecti*e a"encyG o There are three !inds of delin.uent employers o The +ul!ers basically sendetary and sol*ent emloyers who resent the departin" employee and are tryin" to punish# o +hysters employers deliberately set out to defraud employees ?+B *ery ineffecti*e in prosectin" these o Ban!rupted insol*ent employer

secured creditors ha*e priority o*er employees employees only entitled to money owed o*er the last three months up to a ma imum of 400, and no termination pay# insol*ency short of ban!ruptcy may allows someone more renumeration officers and directors may e*en be held personally liable but basically *ery difficult to collecti*e from +o in "neeral wor!ers who lea*e reputabl, stable employers will probably be protected and will "et renumeration, but if you are wor!in" for someone unscrupulous or insol*ed, you are pretty screwed# 0e could "o after the shysters more *i"orously, but this is e pensi*e and success doubtful# 0e could follow ?urope and create wa"e "uarantee systems whereby the "o*ernment would pay the employee for money owin"# o employees of ban!rupt firm "et money from "o*ernment a"ency, and the "o*ernment a"ency has the ri"ht to collect from the ban!rupt company# o may or may not included se*erance and termination pay as part of unpaid wa"es# se*erance pay and termination wa"es not /earned/ per se not a*ailble where employee .uits or is fired with cause se*erance and payment in lieu way more e pensi*e than unpaid wa"es#

-ours of

or4 and +&ertime

Three issues of concern with re"ulation of hours of wro! o some full,time wor!ers wor! *ery lon" hours while other people are unempoyed or underemployed o many wor!ers would prefer more fle ibility o part time wor!ers usually treated less fairly and fa*orably, without access to benefits Canadian employment standards ha*e 2 approaches to limitin" hours o mar!et approach, which simply char"es employer for o*ertime time and a half employer decides whether o*er time cost effecti*e o or mar!et approach plus hard cap that cannot be wai*ed certain industries with irre"ular production cycles may re.uirin" *ery lon" wor!in" hours, so e emptions by permit possible# 9ermit at 7inister%s discretion o BC Thompson 2eport su""ested employees should ha*e a *ote prior to permit, re.uirin" D4F support Bther report su""ested that: o +tanard wee! be A0 hours o period re*iew to ma!e sure that standard wor! wee! mirrors other normal wor! wee! in 6urisdction o "i*e employees ri"ht to refuse to wor! more than A0 hours o reccommends use of time,in,lieu rather than o*ertime pay# Bntario 8ct had ma imum hours at A@, ammended to D0, but only where employee a"rees#

re.uires o*ertime pay for hours in e cess of AA per or with the employees asssent time,and,a,half time in lieu# ?mployment standards act pro*ide time of four annual paid *acations, ma6or lea*es of absence, maternity, partental, adoption lea*e o for maternity, parental, and adoption lea*e, employer doesn%t pay, employees are paid from federal employment inusrance fund, and employer may decide to top up the difference 7o*e towards incereasin" parental and maternal lea*es, also some 6uri!sdictions allow annual emer"ency lea*e ;without pay< to loo! after family members 9art,timers "enerally "et lower wa"es, benefits, and promotion acti*ities 8d*isory "roup recommended o employment standards be *i"orously enforced for part,time wor!ers o home wor!ers should be re"istered, and employers would ha*e to disclose hours of wor! and pay o employer should be re.uired to pro*ided prorated benefits to part,time wor!ers# , BC Thompson report recommended that part,time wor!ers should be entitled to benefits proportional to full,time employees Currently only +as!etchewan pro*ides benefits for part,time wor!ers# Bntario has re"istration system for /homewor!ers/ o

4eport o) the Advisory !roup on Working Ti%e and the "istri+ution o) Work 133A 9arado : many Canadians wor! lon" hours while others ha*e no wor! at all o many who want full time can only "et part,time, seasonal, temporary wor! ;underemplyment< o many people incresain"ly reliant on these 6obs# 8*era"e wor! wee! is declinin" to E5 hours o but this is lar"ely due to increase in part,time wor!, and part,timers a*era"e 14 hours a wee! +o actual hours wor!ed by some full,time wor!ers are on the increase, while more and more 6obs are part,time o most 6obs lost durin" recession are full time 6obs $ronically, mamny other wor!ers are wor!in" well o*er A0 hours a wor!# 0hether you are wor!in" too much or not enou"h, probably not happy with the status .uo 9olari-ation o more 6obs with lon" hours or limited hours, not much in between o many part,time wor!ers, and recession tends to increase this, as does the rise of the ser*ice industry where part time wor! is more common# o most of the underemployed are women, while lon" hours tend to be in male dominated industries and lon" hours associated with hi"h incomes concentrated in resource industries, hea*y manufacturin" and transportation also professionals and mana"erial wor!ers# o other people wor!in" lon" hours are doin" so by stitchin" to"ether se*eral 6obs, this tends to be more women o some wor! lon" hours seasonal, little hours in other seasons# 9aid o*ertime

lon" hour wor!ers tend to be either hourly wor!ers who "et o*ertime, and salaried wor!ers who often wor! unpaid o*ertime# some salaried wor!ers are entitld to o*ertime, but ha*e diffiulties accessin" it some professionals and mana"ers basically ha*e undefined hours# o by statute, employer must pay o*ertime, but the rate *aries across canada, and by collecti*e a"rement o durin" last reecssion, many wor!ers wor!ed a lot of o*ertime it could ha*e represented a lot of new 6obs# o but employers prefer to rely on o*ertime durin" reco*erin" instead of ris!ily in*estin" in where demand for produces/ser*ices still unceratin# o rehires ha*e been limited ;only about a .uarter rehired<, partly due to increased prodcuti*ity, but also partly due to reliance on o*ertime# o some industries rely on o*ertime as a re"ular thin", which could presumably be translated into new 6obs instead# o men are much more li!ely to wor! o*ertime o female dominated secotrs, li!e clearical, sales, and ser*ices, are much less li!ely to be paid *oertime other fields li!e health and social ser*ices may offer o*ertime, but are otherwise low base rates of pay o most paid o*ertime occurs in hi"hly paid wor!ers, and is paid in cash rather than time off *ery few collectie* a"reements ha*e pro*ision for compensatory time off# o not clear how /*oluntary/ paid o*ertime actually is# =npaid o*ertime o many canadians wor!ed o*ertime without pay o more women than men wor!ed unpaid o*ertime o typically unpaid o*ertime due to fiscal pressures, often found in health care, education, and social ser*ices where despite reduced bud"ets, the need to pro*iced ser*ice pressures wor!ers to put in lon"er hours 6ust to complete the wor!# o /lon" hours/ culture common, but perhaps counterproducti*e# Time *s money o decision about wor!in" hours mostly up to employer, not much to do with preference of the wor!ers o Canadians basically split about whether they would rather wor! more or less poorer, underemployed tended to want more hi"h income people would li!e more time off# o many would li!e a A day wee! rather than shorter wor!in" hours o most would not want to ta!e a pay cut in e chan"e for more time off# o so any mo*ement to shorten hours should be *oluntary and the result of pra"matic a"reement amon" the parties themsel*es# 2eport ma!es no firm recommendation to chan"e le"islation, but says there may be a mo*ement towards shorter and more fle ibl wo!rin" hours in both pri*ate and public secotrs# o ages in %C

Minimum

BC has minimum wa"e of @/h, one of the lowest in the country

some ar"ue to incresae it, others say this will lead to unemployment as employers offset this new cost by hirin" fewer wor!ers o BTB(, low wa"es may mean low disposal income, low spendin", slow economy minimum wa"e increases may be inflationary, but could also be "ood for the economy there is also an e*en lower /trainin" wa"e/ o first 400 hours is paid *ery poorly o trainees are "ettin" e perience, but how much trainin" do you need to wor! at 7c)onald%sG

Lawyers and Articling $tudents are E,empt from the Employment $tandrs Act not *iewed as a *ulnerable "roupG Lawyers are a self,"o*ernin" profession who sets their own terms of employment o but articlin" students dont% "et the full benefit of the Law +ociety###

E5uality in Employment Introduction Labour law has lon" been concerned with e.uality in reducin" ine.uality of bar"ain" power but now when we tal! about e.uality we are moe li!ely to be tal!in" about se ism, racism, and homophobia the Charter aplies to labour and employment le"isation, as well as to any employment relationship to which the "o*ernment is a party# (uman ri"hts le"islation applies to employers, unions, and employees &rei*ance arbitrators increasin"ly ha*e the 6urisdiction ot apply human ri"hts le"islation Canada has a history of o*ert and e plicit discriminta o seperate ads in the newspaper want ads for men and women women openly paid less o but also implicit discrimination we should also ha*e susbtanti*e e.uality we should thin! about what "rounds form le"itimate areas of discrimination

#he #heoretical !e&elopment of the Concept of E5uality e.uality has a shiftin" meanin" o it%s a political construction that shifts across space, time, and philosophical family# 1ormal e.uality o no arbitrary barriers should be placed in the way of a person%s opporutnity to impro*e their condition o howe*er, may not be helpful if you belie*e a class of persons is incapa+le of a !ind of sucess

people out to be 6ud"e on indi*idual merit and not e cluded from opporutnities or benefits due to particular characteristics o e.uality of opportunity anti,discriination theory o no one should be denied opportunies on the basis of characteristics which are unrelate to his or ehr ob6ecti*es typically innate differences li!e race or se , and those to which society "i*es a *ery hi"h *alue, reli"ion o stresses sameness, emphasi-in" the fact that all human bein"s share common characeristics simply because they are human bein"s# direct and indirect discrimination o there can be discrimination without the intent to discriminate ie# ostensibly neutral 6ob re.uirements may impact different "roups in different ways# .uesion is whether that re.uirement is truly necessary, and whether some accomodation can be reached that will allow the afffect indi*idual to nonetheless meet the ob6ecti*e o 7eiorin stnads for the *iew that differences should not be measured from a ma6oirty,oreinted baseline, and that standards may sometimes needed to be chan"ed to be brou"ht in line with non,ma6ority needs# more and more "rounds are now protected a"ainst discrimination# family status, criminal record, e*en ($J status may be protected

Application of the Concept of E5uality by the Courts main sources of e.uality law in the labour relations conte t is s# 14 of the c@arter, plus (28s# until (28 and charter, there was no way to challen"e ine.uality directly o ie# le"islation which discriminated a"ainst chinese wor!ers# +lowly de*elopment of (2 statutes o couldn%t be sued under as a tort, since they contained their own administrati*e remedies o applies both to "o*ernment and pri*ate actors o cannot choose not to hire someone on the basis of a listed "rounds Andrews v. Law Society o) B' L13@3M +CC loo!ed to s# 14 and (2 le"islation ;for "uidance<, allowed the findin" of indirect discrimination# 7any leadin" cases arose out of the employment conte t o ,C;alley re.uired the employer to accomodate a Catholic by not schedulin" her on 1riday and +aturday (28 re.uires accomodation and permits the defence of B1B2 o accomdoation is mandatory where it can be effected without causin" undue hardship on the employer# Andrews: s# 14 protects substanti*e, not 6ust procedural, .uality o must consider the impact of the law on who it applies to, and who it e clusdes# o three step process for findin" a breach of s# 14 le"islation/"o*ernment action made a distinction resulted in a disad*anta"e on the basis of an enumerated or analo"us "round

o a person charcateristic that is immutable o and which is characteristic of a dsiad*anta"ed "roup o so s# 14 can be used by indi*iduals a"ainst pri*ate entities where the discrimination is due to "o*ernment le"islation or underinclusion# 8 lot of (2 turn into people tryin" to fit into an enumerated "round (uman 2i"hts 8ct/Tribunal C8N "et you reinstated, thou"h often times people don%t want this#

Relationship between Legislatures and Courts Le"islatures must cmply with the Charter, unless they want to use s# EE

(riend v. Al+erta L133@M +CC 1acts Jriend employed at a catholic school employer founds out he was "ay o dismissed under a school policy tried to file a claim under the (28, but se ual orientation was not an enumerated r"ound Jriend sued sayin" that the ommission of se ual orientation from the (28 *iolated s# 14

8nalysis: Cory and $acobucci ommission of se ual orienation was deliberate and not an o*ersi"ht "o*ernment has repeatedly re6ected the idea that se ual orientation should be included as a prohibited "round ofdiscrimination can s# 14 and s# E2 apply to a le"islati*e ommission o C8 said no, Charter cannot force pro*inces to le"islate in accordance with Charter where they shoose to be silent But here, the pro*ince didn%t choose to be silent, they created an (28 that was underinclusi*e and s# E2 does not limit the application of the Charter merely to positi*e actions encroachin" on rih"ts# this is not a case of 6udicial acti*ism, this is a case where the courts are interpretin" and apply the Constitution as they are re.uired to do o not a case of courts imposin" their /ideal/ le"islation on the pr*ince, but rather determinin" whether the e tant le"islation is *alid, or not nonethin" in s# E2 appears to limit the application of the charter to positi*e acts encroachin" on ri"hts, co*ers e*erythin" winhtin the authority of le"isalture# s# 14 important to recon"i-e the di"nity and importance of indi*idual# o where any enumerated or analo"ous "roup is denied protection of e.ualtiy, then the e.uality of e*ery other minority "ruop is threatened# o discrimination is the antithesis of e.uality, and e.uality is !ey in reco"ni-in" the di"nity of the indi*idual# does the (28 create a disctinction o identical treatment does not constitute e.ual treatment: 6ust because (28 protects both heterose uals and homose uals ali!e, isn%t si"nificant

only homose uals need protection' discriminates in two ways fials to protect homose uals where other disad*anta"ed "roups are protected fails to ensure that homose uals are treated the esame way as heerose uals so denies susbtanti*e e.uality to homose uals# )enial of ?.ual Benefit and 9rotection of the Law o by e cludin" "ays from the (28 "ays are denied the .ual benefit and protection of the law +o we ha*e distincitin, but does it impose a burden or obl"iation on the "roup that is not imposed as others# clearly due to the lon" history of social, political and economic disa*nat"e se ual orientation is an anala"ous "round o deeply personal chracteristic that is either unchan"eable or only chan"eable at unacceptable person costs )id it ha*e the effect of imposin" a burden on "ays that others don%t faceG o whether or not le"islature intended this effect is irrele*ant o here the (28 is intended to pro*ide comprehensi*e protection from discrimination for all 8Lbertans so selecti*ely e cludin" one "roup has a series of effects "ays are denied protection from dsiscrimination under the 8ct Jriend cannot complain to the (28 and "et some !ind of rememdy there is no ci*il remedy also sends the messa"e that it is o! to dsicriminate a"ainst homose uals deliberately e cludin" protection from own "roup sends a clear and sinister messa"e that it is acceptable to dscirinate a"ainst "ays and this will cause "ays to conceal their own identities and li*e in fear# all of this may be immediately due to pri*ate actors, but it is the state denyin" the protection o so basically the state is sendin" the messa"e that it is o! to discrminate a"ainst an analo"ous "round, which is contrary to s# 14 )oes this mean that (28 will always co*er the same "rounds as the 'harterK o Cory says we don%t ned to answer this o whether an ommission is unconstitutional must be assessed in each case# o loo! at the actual distinction and the actual case o s# 1 may sa*e where Ba!es is met# Could the "o*ernment here say that the e clsuion is due to a need for incrememntal social chan"e in terms of minority ri"htsG o ie le"islation will e tend the scope of protection to those that need it# o but here the inclusion of se ual orientation has been repeatedly re6ected, so how can this be a case of incrememntalismG o plus, incrementalism is not that "reat an idea shouldn%t e pected *ulnerable "roups to patiently wiat for the protection of their human di"nity and e.ual ri"hts so court reads se ual orientation into the statute o

2atio le"islati*e omissions may lead to a s# 14 challen"e where they deliberately e clude *ulnerable "roups

After <riend se ula orientation is now listed in all 6urisdictions Law v. 'anada 1333 +CC o attempt to reconcile the di*er"ent approaches to s# 14 aimed at pre*entin" discrimination and ensurin" e.ual treatment protectin" human di"nity, which is harmed by discrimination and promoted when laws recon"i-e the full and e.ual place of all indi*iduals and "roups# o in this case the 9laintiff was suin" for discrimination, because she was too youn" to recei*e her deceased husband%s pension payments le"ilsation was desi"ned to protect older sur*i*in" spouse who could not obtain emplyment o court foudn that while this disad*anta"ed 9, it was not a susbtantial disad*anta"e Brant 'ount Board o) $ducators o $mpaired child forced to "o to special classroom instead of re"ular classroom o +opin!a, no *iolation of s# 14 o not e*ery distinction will constitute discrimination# o s# 14 aimed at eiminatin" discrimnation based on stereotypical attiitudes reatin" to immutable conditions li!e race or se o other important ob6ect is to try annd accomodate the true characteristics of the "rup o where we treated people who are actually different differently, not necessarily discrimination since no attribution of untrue steroetypes ie, "i*in" a wheelchair bound person a ramp is not discrimination, since they need the ramp' o it is the failure to pro*ide the necessary accomodations that is the problem# o The school%s position here is a reco"nition of the actual characteristics of the student anda reasonable accomodation of those characteristics# o sometimes substanti*e e.uality re.uries different treatments

#he 9.nified Approach9

British 'olu%+ia v. B'!S$B L1333M +CC ;The 7eiorin Case< 1acts followin" a series of accidnets and an in.uest, the "o*ernment decided that there needed to be a fitness test for firefi"hters so they "ot =J$C to ma!e a test o basically =J$C "ot a bunch of male firefi"hters to simulate their acti*ities and monitored their JB27a

o then they de*eloped fitness tests that would reach those same le*els 7eiorin had been a firefi"hter for a few years, but couldn%t reach the test le*els# ?*idence from the arbitrator was that mostt women ha*e a lower aerobic capacity, and that most women could not increase that to the re.uisite le*el e*en with trainin"# there was no e*idence that the test le*els were actually necessary to perform the wor! of a forest fi"hter well#

8nalysis 7cLachLin 0hile the arbitrator round there was a realtionship between aerobic capacity and the ability to perform the 6ob, this doesn%t show that the aerobic standard was necessary to perform the 6ob o there was no e*idence that 7s# 7eiorin posed a ris! to herself or others# so was the standard discrmiiatoryG The Con*entional ;old < approach o two types of discrimination direct discrimination: employer must establish B1B2 by showin" standard adopted in "ood faith standard reasonably necessary to the safe and efficient performance of wor!# effect discrimination rational connection between the 6ob and the standard further accomodation impossible without undue hardship o here there was no e*idence that the "o*ernment had attempted to accomdoate 7eoirin to the point of hardship in any case, a new approach is needed o the dstinction is no lon"er appropriate in ser*in" the purpose of contemporary human ri"hts le"islation o the /effect discrimination/ approach doesn%t e*er loo! at the le"itimacy of the norms underlyin" the stndard# o doesn%t allow the courts to e amine whether the norm itself is the prolem# 8 unified approach is necessery that o a*oids the direct/effect dichotomy o re.uires employers to accomodate as much asreasonably possible# o allows e emptions to the duty not to discriminate only where reasonably necessary to the achie*emant of le"itimate wor!,related ob6ecti*es# New, E step test for B1B2 o employer adopted the standard for a purpose rationally connected to the purpose the 6ob o employer adopted the particular standard in an honest and "ood faith belief that it was necessry to the fulfillment of that le"itimate wor!,related purpose o standard reasonably necessary to the accomplishment of that le"itimate wor!related purpose this re.uires the employer to show that it is impossible to accomodate ind*idual employees without imposin" undue hardship# if a reasonable alternati*e ei sts to burdenin" members of a "roup with a "i*en rule, that rule will not be a B1B2 +tep Bne: "eneral purpose of the standard o what is the standard intended to achie*e

often safety and efficiency, but other thin"s possible must show that there is a rational connection between the purpose and the standrad# where the purpose is safety or efficiency, may not be much need to dwell here lon" where the purpose is narrower, may be a more important step o focus is on the *alidity of the puose +tep two :(onest and &ood faith Belief in Necessity o essentially sub6ectie part of the test +tep three: reasonably necessary for purpose o must show it cannot accomdate the claimaint and others of the same class without e periencin" undue hardship o undue hardship implies that some hardship is acceptable# o Courts and tribunals should be sensiti*e to different ways accomodation may be possible there may be different ways to perform the 6ob while still accomplishin" the employer%s le"itimate wor!,related purpose must respect the s!ills, capabilites and potential contributions of all the employees +o for step three consider o whether the employer has in*esti"atied alternati*e approaches that do not ha*e a discriminatory effect ;ie# indi*iduali-ed tests< if these could be effecti*e, why weren%t they usedG o Could standards reflecti*e of indi*idual be used, or is it truly necessary to ha*e one fi ed standard o is there a way to do the 6ob that is less discriminatory whil still accomplishin" the employement o6ecti*eG o is the standard desi"ned to ensure that .ualification is met without placin" an undue burden on those to whom the standard appliesG o (a*e the parties obli"ed to search for possible accomodation fulfilled their roles# +o consider whether there was a procedure to assess the issue of acccomdoation, and whether substanti*ely the outcome of that procedure was correct 8pplication to the case o most women ha*e lower aerobic capacity, so most women are ad*ersely affect by the hi"h aerobic standard: prima facie base for discrimination o 2ational connectionG purpose is to ensure firefi"hter safety, and the standard was rationally connected to this o honesty and "ood faithG yep "o*ernment acted in honest belief that standard was necessary for safety "o*ernment hired =J$C e plicitly to a*oid discriminatory stndards o 2easonably necessaryG "o*ernment must show that in order to meet purpose, it cannot accomodate the differences without e periencin" undue hardship the standard was problemtic because it was based on the aerobic capacity of e tant firefi"hters, not what was actually necessary to do the 6ob it also failed to distin"uish female from male firefi"hters, and whether the same le*el of aerobic fitness was re.uired for both# o

 2atio

ne*er established that all firefi"hters had to meet that standard to do the 6ob plus "o*ernment has entered no e*idence as to the cost of accomodation no e*idence that 7oeirin would be a safety ris! so "o*ernment didn%t demonstrate that the safety would be compromised to the point of undue harship if a different standard was used# Cou cannot simply say that the other wor!ers would be upset by the accommodation

2ational Connection of Le"itimate 9urpose to the standard +tandard adopted in "ood faith and honest belief of necessity +tandard reasonably necessary to the performance of the purpose o accomodation impossible without the imposition of undue hardship shows that we don%t 6ust loo! at accomodation, we loo! at the norm itself and see whether it is actually encessry to do the 6ob o can we desi"n the 6ob so more pepole can do itG

$ome Ma;or Employment/Related E5uality Issues

$e, !iscrimination demonstrates e*ol*in" approaches to e.uality claim Bliss v. A! 'anada L1353M o discrimination on the basis of pre"nancy not se discriminatin, since it discriminated on the basis of pre"nancy rather than se Brooks v. 'anada Sa)eway L13@3M +CC re*erses o discirmination on the basis of pr"nancy is se discrimination becaues only women "et pre"nant o those who bear children are bien" socially useful, shouldn%t be punished shouldn%t put the full burden of child bearin" on half,the population o may not affect e*ery woman, but only affects women# o no parallel to not lettin" men "row beards no useful anal"oy between policy denyin" men the opportunity to "row beards and an accident and benefit plan that discriminatets a"ainst women who "et pre"nant (28 now included pre"nancy as an enumerated "round#

$e,ual -arassment as $e, !iscrimination law reluctant to characteri-e harassment as a form of discrimnation some said that since not e*ery woman in a wor!place was harassed, it was not discrimination a"ainst woman as a class o or it was simply an e pression of personal attraction with which the law should not interfere ?an-en v. *laty $nterprises Ltd. L13@3M +CC

1acts Complainants where two waitresses who were bein" se ually haraseed by male cowor!er when they complained to mana"er, mana"er too! the side of the co,wor!er .uit their 6obs, filed (28 claim o (28 claim did not include mention of se ual harassment, thou"h it did include seu al discrimination

8nalysis , )ic!son +e ual harassment leads to reduced outcomes and ad*erse conse.uences for the *ictims $t is an abuse of ecnomic and se ual power o by re.uirin" employee to tolerate unwelcome se ual actions or demands, harassment attac!s the di"nity and self,respect of the *ictim both as an employee and as a human bein"# C8 said that the harassment was not a"ainst women, since not all women in the wor!place were harassed o harassment was based on attraction, not "ender# This is wron"H discrimation does not re.uire that e*ery member of the class be mistreated# o ascribin" to an in*idiual a "roup characteristic may be enou"h o the C8 was usin" the same ar"ument that since not all women "et pre"nant, discrimination on the basis of pre"nancy was not se ,discrimination all pre"nant persons are women o only a woman could be sub6ect to se ual harassment by a heterose ual man o the critical factor here is that only female employees ran the ris! of se ual harassment no man would ha*e been sube6cted to this treatment# +e ual harassment is a form of se discrimination because it denies women e.uality of opportunity in employment because of their se

!efining $e,ual -arassment +e ual harassment is now e plicitly contained in the (28 of some 6urisdctions, whereas other 6urisdictions still use /se ual discrimination/ as basis for se ual harassment claims Three rationales for treatin" se ual harassment as a form of se discrimination o Bnly a woman can be tar"eted for harassment by a heterose ual male some cases won%t fit man mi"ht be tar"etted as bein" effeminate o +e ual harassment is a practice that limits womens% economic opportunities this is tied to historical conte t women%s ability to find and "ets lob is limited by se ual harassment if a woman either has to submit to harassment or "et fired/not "et promoted, their economic prosperity is limited o se ual harassment is se ual in nature some pro*inces ha*e specifically added se ual harassment into the (28

not BC, BC only has se ual discrimination some pro*ided a definition of se ual harassment and spelled out e plicitly that se discrimination is harassment# not really, often when women enter the wor!place they are treated to harassment that isn%t se uali-ed per se, shunnin", sabota"e, etc# why not simply ban all harassment in the wor!placeG o lose the capacity to address systemic problems o you focus on the /bad "uy/ rather than the real problem also, anti,bullyin" harassment laws carry the prospect of e*ery incident of bic!erin" to blow up into a hu"e le"al problem o ele*ates relati*ely tri*ial problems into le"al cases#

Shaw v. Levac Supply Ltd. ;1331< Bntario 1acts 9 wor!ed as a boo!!eeper durin" her employment a male cowor!er harasser her, mimic!in" her speech, callin" her incompetent, and ma!in" dero"atory comments about her wei"ht ;waddle waddle when she wal!ed<

8nalysis was this se ual discriminatioNG yes, ma!in" an implicit comment about someone%s se ual attracti*eness is a comment of a seual nature o e*en if it is to call someone se ually unnatracti*e, it is *erbal conduct of a se ual nature and it is se ual harassment in the wor!place if it is repetiti*e and creates an offensi*e wor!in" en*ironment it is se ual harassment in the form of an inappropriate comment of a se ual nature why would a male collea"ue comment about a women%s wie"ht if not to call her phsyically unattracti*eG o he ou"ht to ha*e !nown that this was a /se ual put down/ anyways, e*en if it was non,se ual in nature, /se ual discriminatino/ includes coments made on the basis of "ender

2atio e*en harassment that is not e plicitly about se ual intercourse may be se ual discriination where the plaintiff can show a lin! between the harassment and her se #

!iscrimination on the %asis of !isability an area of increasin" concern collecti*e bar"ainin" of limited help since can only help those who ha*e 6obs, and disabled peopel often can%t "et 6obs in the first place# historically an employee who became disabled and couldn%t adapt was out on the steret# but now disablity is a prohibited "round of discrimination across the country

accomodatin" disability often challen"in" o may affect the wor!in" conditions of other employees the disabled are hi"hly hetero"enous and ran"e in se*erity, problem, etc# for disabled people the real challen"e is "ettin" a 6ob o once you "et a 6ob, the employer must accomodate you to a lar"e de"ree much of what constitutes /disability/ is in fact sociolo"ical o the inability to wal! only becomes a disability when we assume that buildin"s will ha*e stairs, doors that must be pulled, etc# we would all be disabled if buildin"s re.uired you to scale a D foot wall

;ichael Lynk #"isa+ility and the "uty to Acco%odate# .3==/A3==32 )isabled people as a "roup are hi"hly hetero"enous o *arieties of disabliin" e perience *ery wide o social en*ironment tends to compound the disability o disability means different thin"s dependin" on the indi*idual and the conte t condition of disablity potentially mutable o unli!e race or se, potential to become disabled, or become abled once a"ain so fle ible and in flu o anyone has a chance of becomin" disabled, and this chance increases with a"e The response to disability may be a lot more comple and more costly than accomodation on the basis of other "rounds, and may re.uire more creati*ity and co,operation

+besity and !isability +hould fatness be treated as a disabilityG o often comes up in the conte t of airline seats# 9ros o will "et the fat remedies were they otherwise would not be able to "et them o obese people often are otherwise disad*antaed Cons o may reinforce the idea that fat people are disabled, when many ar"ue that the ob6ection to fatness is a social construction many happy, healthy fat people o moral ha-ard don%t want to accomodate those that /choose to be fat/ to the same de"ree we accomodate those who are obese for medical reasons and in fact some airlines ha*e tried to do 6ust this but we don%t do this for drin!in" too much, or e treme sports, other areas where disability may be related to /choice/

Addiction and !isability addiction has been reco"ni-ed as a disability by arbitrators and courts this means that where someone has an addiction, the employer must accomodate them o but this doesn%t typically mean allowin" the beha*ior to continue, but to help the person see! treatment

unli!e other illnesses, we often re.uire these people to remedy their disease o may help pay ofr treatment, !eep 6ob open, or help employee a*oid tri""ers howe*er, relapse is an intrinsic part of addiction, and one that must be accepted employers may wish to create /last chance/ a"reements, but arbitrators are typically critical of these

Shuswap Lake !eneral @ospital v. British 'olu%+ia NursesC Bnion 5Lockie !rievance7 L2002M BC 1acts 9 is a nurse who as a result of tra"edies "ot bi,polar mood disorder small hospital, limited number of nurses B7) is treatable and can ha*e comple and serious 6ob positions 9%s B7) led her to ma!e a serious of medication errors, includin" failure to administer certain anti,biotics# o so 9 ma!es a bunch of errors one day errors were cau"ht and not clear whether any harm was done, probably not 9%s B7) dia"nosed, found to be tied to season o wor!ed a"ain for a few months, then another incident occured ?mployer decides accomodation impossible because relapses are impossible to predict# +eries of accomodatin" measures not incldued o return to wor! pro"ram o family and ac.uiantance monitorin" of 9 o more fre.uent super*ision or lithium le*el reports o etc#

8nalysis !eey .uestion is whether accomodatin" 9 would impose undue hardship on the ?mployer prima facie discrimination as per 7eiorin o ?mployer%s refusal to continue to employ the "rei*or is ine tricably tied to her mental disability, and is prima facie discriminatory Bnus mo*es to employer to pro*e a B7B2 o employer%s standard to allow 9 to return was if she was well controlled, NB ris! to patient safety, and does not re.uire close super*ision Challen"e is whether employer has established that its standard is reasonably necessary by demonstratin" it is impossible to accomodate the "rie*or in her nursin" posiiton without incurrin" undue hardship ?mployer%s stndard here is one of absolute safety o ?mployer focused too much on whether the relapse can be predicted o employer should ha*e focused on accomodati*e measures that would reduce any ris! to safety to an acceptable le*el and still allow "rei*or to wor!# ?mployer needs to show on a Bo9 that continuin" to employ 9 would create a serious or unacceptable ris! to patient safety, or, if ris! is low, that the loss or in6ury created would be serious

2atio

o employer hasn%t established this or that accomodation would be impossible o safety clearly important, but employer hasn%t shown a serious ris! of harm# Bther nurses ha*e and do ma!e mista!es and there is no e*idenec that any patients were harmed by 9%s mista!e o so no serious or unacceptable ris! has been created 0hat about the possibility that 9 may ha*e to "o home, and lea*e the hospital short staffedG o no e*idence that patient safety was 6eapordi-ed by a short"a"e of nurses on the unit# any sin"ificant disruptions caused by 9%s beh*aior could be reduced by pro*idin" a wor!shop on B7) to co,wor!ers and super*iosrs, and instructin" staff to ensure 9 is remo*ed if her beha*ior indicates relapse# ris!s can be reduced throu"h accomodati*e measures o here the team,based conet t meant that it was easier for her beha*ior to be monitored o relapse has been seen by other wor!ers and is easy to identify o super*isors and mana"ement are always a*ailable for reportin" purposes o 9 recepti*e to bein" told she is unwell and has a"reed to be replaced in that conte t +o reasonable accomodati*e measures can reduce the ris! to an acceptable le*el

the employer has an obli"ation to show that the employee cannot be reasonably accmodated without undue hardship o ris!s or problems associated with accomodation cannot be simply inferred, but must be demonstrated o employers must consider creati*e options when considerin" disabled employees# you cannot re.uire that the mentally ill or disabled ha*e a -ero percent chance to accomodate#

Re5uirement to $ee4 #reatment8 Normally as part of the accomodation, the employee must see! treatment but this will depend on the nature of the disability o for addictions, pretty much re.uired to see! treatment o arbitrators may re.uire people to ta!e medication for other disabilities, but *ary wary about re.uirin" people to ha*e sur"ery#

ho is .nder a !uty to Accomodate both union and employer are under a duty to accomodate unions cannot create or a"ree to a collecti*e bar"ain that is discriinatory employee also has a duty to ma!e accomodation possible o must participate in findin" accomodation, and accept reasonable accomodation howe*er, there is often a tension here, because unions may also want to "i*e the position needed to accomodate to a more senior member#

'entral ,kanagan School "istrict no. 39 v. 4enaud L1332M +CC +opin!a 1acts 9 is a 6anitor at the school district (e had an afternoon shift runin" until 11 97, but as a 5th day ad*entist, he wasn%t supposed to wor! 1riday ni"ht%s +chool board willin" to accomdate him, but most of the su""estions would "i*e 9 a /prime/ position he didn%t ha*e the seniority for o 9 didn%t want to wor! a four,day wee! either, since this would mean a drop in pay# +o employer decided to "i*e him a +unday to Thursday shift o =nion says no, no one wants to wor! 1riday ni"ht +o e*entuall employer terminates 9 9 complaints under (28 o discrimination on the basis of reli"ion

8nalysis $ssue is whether both employer and union ha*e a duty to affect reasonable accomodation where the employee is unable to wor! a certain shift for reli"ious reasons duty re.uires employer to ta!e reasonable measures short of undue hardship o measures which consist of undue inteference with the business or undue e pense are not re.uired =+ has a pretty low standard, any hardship at all is pretty much enou"h to mean the employer doesn%t ha*e to accomodate o but canada went a different way# Canada wants more than a minimal duty to accomodate o /undue hardship/ accomodation is limited by /reasonable/ accomodation /short of undue harship/ o this is a .uesiton of fact that will *ary with the circumstances of hte case o could be financial cost, disruption of a collecti*e a"reement, problems of morale of other employees, etc# o in any case, must be more than a minor incon*enience o must show actual and substantial interference or incon*enience is the price to be paid for reli"ious freedom in a multicultural society 9arties are not capable of ma!in" bar"ain contract to the (28 o ad*rse effect discrimination is also prohbitied by the (28 o so collecti*e bar"ain cannot relie*e the employer of the duty to accomodate o the fact that the union would be upset was not enou"h to constitute undue hardship This is comin" out of the +chool Board%s fear that unilateral action would lead to reprisals and a "re*iance o the school board thou"ht the "rei*ance would be bound to succeed# o the union%s ub6ectiosn were based on attitudes inconsistent with human ri"hts, which were irrele*ant

there was no e*idence that the ri"hts of other employees would ha*e been affected there was no proof that other employees wouldn%t ha*e a"reed to switchin" shifts the union was upset because the action appeared to *iolate the collecti*e a"reement, not because the actual membership ob6ected )id the union ha*e a duty to accmodateG o a union which causes or contributes to discrimination is as liable as the employer the union has the same re.uirement as the employer to 6ustify discrimination o union does not deny the duty, but asserts the focus was misplaced should focus on the de"ree to which interference "oes to the ri"hts of other members and there should ne*er be a re.uirement that conflicts with the collecti*e a"reement, unless the employer has e hausted all reasonable accomodations which do not impact the collecti*e ri"hts of the employees# =nion may become party to discrimination in two ways o it may ha*e helped create the discriminatory rule probably as a result of a pro*ision in a collecti*e a"reement# both employer and union liable for all terms in the collecti*e a"reement o where the union impedes the reasonable efforts of an employer to accomodate where reasonable accomodation re.uires union co,operation, and the union bloc!s efforts to remo*e or alle*iate the discriminatory effect, it becomes party to the discrimnation# 7ust !eep in mind the representati*e nature of the union o the duty to accomodate should not re.uire the sacrificin" of the ri"hts of some members to the ri"hts of others# o Test of undue hardship applies, but is met by showin" pre6udice to other employees if proposed accomodatin" measures are adopted o so normlally si"nificant interference with the ri"hts of some employees will 6ustify the union in refusin" to consent to the measure o union may be re.uired to propose alternati*e measures that are less onerous +o two applications of the )uty to =nion o where union helped ma!e the rule, it has a 6oint responsibility with the employer to accomodate the employee if nothin" done, both liable o but employer must ta!e steps that are reasonable where the employer%s su""estion is minimally e pensi*e but disrupts the collecti*e a"reement or impacts the ri"hts of employees, this will usually result in a findin" that the employer failed to ta!e reasonable measures to accmodate, and the union will be found 6ustified in refusin" to accept the bar"ain# in this case union should propose alternate measures Bther application is where union is not part of the cause but in failin" to co,operate impedes a reasonable accmodation o

duty to accomodate here only arises where its in*ol*ement is re.uired to ma!e accomodation possible, and no other reasonabe alternati*e resolution of the matter has been found or could rasonably ha*e been found# (ere, there was ad*erse effect discrimination caused in part by the union o so there was a 6oint duty to accommodate o only possible effect of the accomodation was that one employee%s schedule had to be ad6usted o and other employees weren%t e*en as!ed if they would mind o so the union%s duty was not dischar"ed# The complainant also had a duty to assist in securin" an appropriate accomodation o must help facilitate the search for an accomdation o no duty to help thin! up a solution o where employer has a reasonable proposal to accomodate, 9 must help facilitate this if the complainants refusal to ta!e reasonable steps causes the accomodation to founder, the 9%s claim fails o (ere 9 did e*erythin" needed, and the accomdation failed beacuse the union refused to consent and the employer refused to proceed unilaterally# o

2atio union has a duty to help accomodate the employee when the union is responsible for the rule ;where the rule is a product of the collecti*e bar"ain< union also has a duty not to impede reasonable attempts to accomodate o union may be 6ustified in refusin" accomodation that aims at cheapness and has some effect on the bar"ain or other employees#

$ystemic !iscrimination term used to describe a web of factors which lead to the under,representation of particular "roups in the wor!force or their o*er,representation in low,le*el 6obs# +CC does not *iew economic "rounds as bein" protected Charter does not appear to create an obli"ation to enact measures to combat systemic discrimination o but 14;2< e plicitly allows affirmati*e action

<. <elly, #(isi+le ;inorities: A "iverse !roup# ;1334< Canada beocmin" more *isibly di*erse e perience of new immi"rants *aries widely o some .uic!ly ad6ust o others ha*e difficulty accessin" ser*ices or "ettin" 6obs because they lac! the necessary lan"ua"e s!ills o different "roups ha*e different a*era"es a"es, education, types of 6obs Jisible minorities typically more hi"hly educated, but also less li!ely to be employed in professional or mana"erial occupations many *isible minorities underemployed e*en with a post,+econdary education o particularly +outh 8sians and Latinos, not so much >apanese o basically worse off than non,*isible minorities $n the future the *isible minority population is e pected to !eep increasin"

o 0est,8sian and 8rab community e pected to be feasted "rwoin" o chineses, 8sian, Latin 8merican also will lead to increasin" di*ersification of Canada%s *isible minority population

'anadian National 4ailway 'o. v 'anada .'anadian @u%an 4ights 'o%%ission7, L13@5M +CC 1acts CN2 discriminated a"ainst women in its hirin" practices for certain 6obs Tribunal ordered that the employer set a "oal of ha*in" 1EF femal participation in certain 6obs o also, 1 in A new 6obs had to "o to a woman

8nalysis,)ic!son CN2 employment le*els way, way unrepresnetiat*e to women Tribunal found that recruitment, hirin", and promotion policies pre*ented and discoura"ed women from wor!in" on blue collar 6obs# $nter*iews of women had a mar!ed /chillin"/ effect, and women were e pressly encoura"ed to only apply for secretarial wor! o women were ne*er told what they needed to .ualify o re.uirement of e perience in solderin", e*en for unrelated 6obs, was an additional hurdle o foreman did the actual hirin", and the foreman typically unrepecti*e to female candidates +stemic discrimination is where pracitces and attidues ha*e the effect of limitin" an indi*idual or a "roup%s ri"ht to the opportuniites "enerally a*ialable because of stereotype rather than actual characteristics o where a barrier is affectin" certain "roups in a disproportionate way, it is a si"nal that the practies that lead to the ad*erse impact may be discriminatory so in the hirin" conte t, it is the effect of establshed hirin" practies that weed out a certain "roup, none of which are necessarily desin"ed to promote discrimination o then the e clusion of that "roup sends a messa"e that the e clusion was the result of natural forces rather than discriminatory practices# The (28 allows remedies that aim to pre*ent discrimination in the futrue# o allows the tribunal to order measure aimed at pre*entin" the future occurrence of a discriminatory practice The remedy used here ;hirin" .uota P employment "oal< was aimed at "ettin" the le*el of female employment of CN2 up to the national standard in that industry o not at all arbitrary# the point of the order here is to pre*ent future discriminationH a powerful order was needed because of the deep roots of discrimination a"ainst women o it is clear that the hirin" and promotion policis of CN2 and the problems faced by women who mana"ed to "et hired created a systemic denial of women%s e.ual employment opportunities o and this small number of women perpetuated the attitude that the e clusion was natural, causin" additional discriination o pre*entin" this discrimination in the future needs some !ind of remedy

want to brea! the causal lin! between past ine.ualities and future perpetuation of those ine.uality o 7ust loo! to the past to understand what !ind of remedy mi"ht be succesful in pre*entin" discrimination in the future# +o when a pro"ram is aimed at remedyin" past discrimination, it neecssarily is pre*entin" future acts of discrimination because the *ery presence of the discriminated,a"ainst,"roup will help brea! down stereotypes and practices within the wro!place which led to the past discrimination# The remedy here is directed towards a "roup rather than an indi*idualH thus it cannot be compensatory, but must be prospecti*e o must be aimed at impro*in" the situation for that "roup in the futrue# ?mployment e.uity pro"rams, li!e the one ordered here, are aimed at brea!in" the cycle of systemic opportunities o the aim is to ensure that future applicants and wor!ers from the affected "roup will not face the same barriers that bloc!ed earlier ones +o employment e.uity pro"rams wor! in three ways o by counterin" cumulati*e/cyclical effects of systemic discrimination ma!es future discrimination pointless, since you will ha*e to hire/promote those candidates anyways anyone intentionally discriminatin" is simply out of luc! o by placin" the discriminated "roup into the wor!place, the stereotype that they are incapable of doin" that wor! is dispelled o by creatin" a critical mass of that type of indi*idual dispels the illusion of to!enism those that are hired will help "et their friends and family hired, and this will help create a flow of applicants from the discriminated "roup# +o if more women are into the wor!place, there will be less sti"ma a"ainst women in blue collar 6obs, hirin" parties will ha*e to treat women applicants more seriously, and there will be chance of self, correction of the system +o !eepin" in mind these "oals, it is clearly necessary to loo! at past discrimination in craftin" a remedy To render future discrimination pointless, to counter sterotypin", and to create the re.uisite /critical mass/ of tar"et "roup participation, it is essential to combat the effects of past systemic discrimination# o these systemic remedies mus tbe built upon the e perience of the past so as to pre*ent discrimination in the future# here the "oal was mostly about employment rather than hirin" o this was because the tribunal was worried about women bein" retianed, not 6ust hired o they wanted to stop a hi"hly le*el of turno*er as a result of male antipathy towards female wor!ers#

@ydroALue+ec v. Syndicat des e%ployees de techniFue pre)essionelles 200@ +CC )eschamps 9 had a number of illnesses, includin" mental and phsycail illness was often absent and unable to wor! no relistic chance for impro*ement

the only su""estion by the union was that the 9 be periodically mo*ed as she pissed people of, in !eepin" with the /lo*e,hate/ cycle of her relationships with super*isors and co,wor!ers o this was seen as undue hardship o partly about the snadrad here o union ar"ued employer had to show /insurmountable conse.ues/

8nalsyis issue here is the applicationof the 7eorin stndard and the application of the /undue harship/ +tandard for pro*in" undue hardship o 7eiorin BB9 estbalished stndard for a purpose rationally connected to the performance ofth 6ob adopted the standard in an honest and "ood faith belief that it iwas necessary to the fulfilment of that le"itimate wor!,related purpose the standard is reasonably necessary to the accomplishment of that le"itimate wor!,relate purpose show htat it isimpossible to accomosdate indi*idual employees sharin" the characteristics of the claimant without imposin" undue hardship on the employer o in order to find B1B2, it must be found that the rule or standrd acomodates ind*idual differences to the point of undue hardship so what is really needed is proof of unde hardship, not proof of impossibility of inte"reatin" the employee o may consider financial costs o relati*e interchan"eability of the wor!force o de"ree of interference with the ri"hts of other employees "oal of accomdoation is to ensure that an employee who is able to wor! can do so o those peopel who are otherwise fit to wro! are not unfairly e cluded where wro!in" conditions can be ad6usted without undue hardship so an emloyer does ha*e to offere the employee a *ariable wro! schedule, li"hten duteis, or e*n authori-e staff transfer, to ensure that the employee can do his or her wor! if necessary to accomdoate o modificiation of wo!rin" ocnditions mi"ht be necessary but if the employer can show that despite measures ta!en to accomodate the employee, the employee will be unable to resume his or her wro! in the reasonably foreseable future, the employer wil ha*e dischar"ed its burden of proof and established undue hardship o so the test is not total unfitness for wor! o if the charcateristics of an illness are such that the proper operation of the business is hampered e cessi*ely or if an employee with such an illness remains unable to wor! for the reasonably foreseeable future, e*en thou"h the employer has tried to accomodate him or her, the employer will ha*e satisfied the test o the employers duty to accomodate ends where the employee is no lon"er able to fulfill the basic obli"ations associated with the employment relationship for the foreseeable future 8t what point in time do we assess the duty to accomodateG

o o

at the time of dismissalG the employer certainly could ha*e !ept tryin", it had not e hausted all options at that point# no, you loo! at the whole situation, includin" the history of problems where an employee has been absent in the past due to illnees, has been accomodate o*er se*eral years, and the doctors are not optimistic about the possibility of impro*ed attendance, the past cannot be disre"arded in assessin" undue hardship

Labour and Employment in the "ew Economy #he Crisis of Industrial Relations and Labour Law a lot of the problems with emloyment contracts, stri!es, etc are tied into the problem of chan"in" industrial relationships o corporate downsi-in"/restructurin", technolo"ical chan"e, "lobali-ation, pri*ati-ation, and a chan"in" wor! force This chan"e is "lobali-ation, and mar!s itself in all sorts of labour cases#

@arry Arthurs #La+our Law without the StateK# Bld *iew of nation state is that it is comprised of the poltiical, the 6udical and the economic o so these are the ways we ha*e tried to re"ulate the labour mar!et but the economic space no lon"er e ists within" the state, but across it o some actors ;7NC< e tend beyond state boundaries o other bodies, lie! unions and small business, are much smaller and associated with the locatily National so*erei"nites are shrin!in" and fracturin" into smaller and smaller states, while supranational institutions, li!e the ?=, are be"innin" to create international political and 6uridical institutions that transcend states and are coterminus with the broader economic space 6urdiical bodies tied to political spaces, but there are some suprenationa forums# o internation law also has impact on practically all le"al orders# so we are e periencin" somethin" of a /hollowin" out/ of the state o state%s ability to pro*ide stimulus, re"ulation, and welfare under attac! and disol*in"# labour law was de*eloped in a distinct conte t, a web of public policies, institutional arran"ements, and understandin"s between employers unions and "o*ernments o as this system unra*els, the rele*ance and effecti*eness of the old system is in .uesiton $ntellectuals and technocrats are abandonin" the labour pro6ect o no lon"er interested in re"ulatory inter*entin, pro"ressi*e tra ation, public e penditures to set off business cycle, or e*en the possibility that class differences can be meidate by colecti*e bar"ainin" wor!ers becomin" increasinly apatethic or anti,pathetic to labour mo*emet o unions ha*e failed to preser*e old alliances with ethnic communites or for"e new ones# o wor!ers seem themsel*es in competition for the dwindlin" supply of full,time employment

both unions and corproations fi ated on the bottom line rather than the "reater "ood# +o lon",establsihed labour mar!et instiutions, li!e ?$ and wor!ers compensation, are now under attac! o minor ad6ustments to collecti*e bar"ainin" le"islation is portrayed as essentially communist o /culture war/ focus on same,se benefits and systemic inter*entions 7ost of our whole system is based on paradi"ms that are no lon"er true o *ertically inte"rated business, hierarchical mana"ement, lon",term full time employment are no lon"er the norm# departures from the old style of industrial or"ani-ation are becomin" the norm o this is creatin" a new paradi"m which demands the de*elopment of a new system of labour law what does the new industrial or"ani-aiton loo! li!e o increasin" use of robotics as aopposed to wor!ers o shorter runs of non,standard rpodcuts this re.uires multi,s!illed wor!ers who share respnosibiltiy for production, coupled to share financial incenti*es o use of computer in*entory allows /6ust in time/ production reduces the need for their own cadre of employees o so new forms of !nowled"e and s!ill, with accompanyin" need for education, is at a preimum o this creates points of conflicts between different factorires, "enders, seniority, educational .ualifications, and other attributes that unions may be ill e.uipped to handle# o all this means emloyment in the manufacturin" sector is shrin!in" this leads to shrin!s in other secotrs mana"ement clerical wor!ers so there is serious structural unemployment for all cate"ories of wor!ers in the relati*ely pri*iled"ed sector of indsutrial employment Bther sectors are rapidly "rowin" o !nowled"e wo!rers often consultants, or non,standard employment o must also many part,time, low,s!illed, dead,end 6obs mac,6obs +o how rele*ant is the old labour lawG The composition of the wor!force has often chan"ed o no lon"er mainly white and male o a lot of ethnic di*eristy o issues of race re.uires labour law to confront e.uity issues 6ust when there is a small mar"in of optimisim and social resources than e*ery before moreo*er, addressin" racism re.uires wholesale cultural chan"e# "ender composition is the lar"es tchan"e in the wor!ofrce o after feminist re*olution, the wor!place has permanently chan"ed o a lot of bumps on the way, "lass ceilin", harassment, etc# o (28, emplooyment e.uity, etc were used to address these chan"es o but the old paradi"m ne*er truly con.uered but now it is dyin" entirely o

not clear how thin"s will chan"e, but certainly "eneder relations will shape labour law as well not clear how labour law can address !nowled"e wor!ers o how can stuff li!e seniority and e.ual employment deal with situations were recruitment is based on hi"hly differentiated credentials, s!ills and !nowled"e o plus, the mana"ement structure of !nowled"e wor!er has been flattened o and the line between entrepenuer and wor!er is blurred for consultants and specialists who li*e contract,to,contract 1ree trade, and especially N81T8, has brou"ht many of these issues to a head# o N81T8 is not supposed to chan"e any formal le"al norms o but free trade may be a conditionin" de*ice that is use to lead us to adopt a certain set of *alues enhances the scope of the pri*ate mar!et and powerful mar!et actors, and puts into .uestion the le"itimacy of the welfare and re"ulatory states# N81T8 does this by remo*in" tariff%s which protected canadian 6obs and ta re*nue allows =+ control o*er industrial and intellectual property across borders e poses Canada and 7e ico to stron"er currency fluctuations and it "i*es employers the credible thread of mo*in" factories to where production would be the cheapest creatin" a race to the bottom o +o N81T8 may ha*e created an en*ironment where employers, rather than wor!ers or unions, set the a"enda for labour law =nions ha*e suffered si"nificantly under N81T8 o salary roll,bac!s, lost stri!es, downsi-in" of public and pri*ate sector wor!forces, and other problems ha*e occured o but labour law hasn%t been rolled bac!, e*en has made some pro"ress +o has the effect of N81T8 been to condition us to accept neo,liberal normsG o maybe, certainly Labour political institutions li!e Bntario N)9 ha*e suffered o and 6ust because no formal institutional chan"es to law ha*e happened, doesn%t mean baseline assumptions about what is possible and what is desirable ha*e not chan"ed to reflect neo,conser*ati*e/neo,liberal *alues# o so conditionin" can ha*e an effect on the labour mar!et without bein" inshrined in le"al rules labour law doesn%t need to be repealed, it can be left to wither a conse.uence of all this is that many ma6or firms no lon"er ha*e canadian mana"ement interested in Canadian interests o many firms also no lon"er bother with in,firm labour relations specialists o instead, policies are imported from the =+ and pro6ected onto Canada o +o Canada, without any actual le"al chan"es, may e perience more resistance to unionism, less support for the welfare state, and other chan"es in labour law meanwhile unions remain parochial, and there are practically no trans,national unions There are two ma6or settin"s in which the new labour law mi"ht be shaped o +upranational labour re"ulation to match supranational labour mar!ets $LB has not been successful in creatin" inernational labour law norms ?= has had some modest ability in creatin" ?=,wide laws, but this may be uni.ue# o

transnational labour laws will be *iewed as an intrusion on national so*erei"nity will be practically difficult to draft and implement still, there will be a spirited debate about whether and how we mi"ht de*elop transnational labour standards wor!place itself may new norms created, whehter e plict rules, or implicit understandin"s of ways of doin" this# may need to loo! to the "rass roots rather than to states and other bodies result of the death of the old labour model may be a refocus on local stru""les, on indi"enous informal lawma!in", and on mo*ements which draw there stren"th from "rass roots in*ol*ment

4eport o) the Advisory !rup on Working Ti%e and the "istri+ution o) Work 133A 1amilies face three pressures o child care o senior care o income maintenance, usually re.uirin" bot parents to wor! few people can support family on one income, more sin"le parents than e*er o so difficult, esp# for women, to reconcile wor! andfamily obli"ations last "eneration, more common to hae a male breadwinner the new participation of women in labour force is spurrin" demand for parental or family,related lea*es and more fle ible wor!in" hours Lon" hours often common, due to employer demands and need for more income o partly a rsult of downsi-in" o more and more youn" people stayin" at time o free time at a premium, and 6ob satisfaction fallin" as more and more people e perience stress 9ressures of e*er,increasin" competition and or"ani-ational chan"e has penetrated the whole economy o demands by customers for lon"er business hours, better products, and better ser*ices, while at the same time companies respond to fiscal restraint "rowth in non,standard wor!: irre"ular hours, multiple wor!places, or wor! from home o fewer and fewer full,tiem wor! at one sin"le company o standard 6ob is a full,year, full,time 6ob with a sin"le employer but fully 1/2 of new 6obs are non,standarda 9art,time most common *ersion of non,standard wor! o may be enou"h, or often combined to"ether to "et enou"h hours/income# o part,time an temp 6obs "rowin" more .uic!ly than full,time 6obs as a result of recession and ma6or structural chan"es, and will probably be the /standard/ 6ob of the future# o these aren%t necessarily bad, they are more fle ible and pro*ide *aluable e perience o but they don%t ha*e predicatble hours and incomes, much less benefits 0e need to be concerend about the "rowth of dead,end, 6ust in time 6obs which don%t "i*e accesss to ri"hts, standards, and opportunties, particularly because tend to be women and *isible minority

full,time 6obs pro*ide stablisty, benefits, access to unions, and better wor!in" conditions 9art,time wor!ers ha*e hard time access benefits, includin" ?$ and pension plan beneftis the 8d*isory "roup says chan"es need to be made to impor*e the conditions of wor!ers in non,standard 6obs# as manufacturin" 6obs dwindle, ser*ice industry "rowin" o ser*ice industry more li!ely to be part,time# as more women participate in the labour mar!et, demand for ser*ices replacin" their house wor! has increased o house cleanin", fast food, child care /6ust in time/ mana"ement now the paradi"m o led by Toyota, aimed at low in*entory by computeri-ation o so companies must be prepared to produce and deli*er small order rapidly, on demand o this means le*el of demand will be uncertain, increasin" reliance on people whose hours can easily be chan"ed: temp wor!ers, part,time wor!ers without fi ed hours, and homewor!ers# This has spread to the ser*ice sector, where people e pect ser*ices to be a*ailable whene*er it is needed o round the cloc! coffeshops, etc# o e*ery company that operates in this way puts demnads on other companies to do the same, spreadin" the /6ust,in,time/ philosophy There is hei"htened competition for 6obs as well o lowerin" wa"es has been a response to the chan"in" competiti*e en*ironment and demandin" shareholder o do this by increasin" reliance onn non,standard wor!ers o or by contractin" out contract wor!ers may recei*e lower wa"es, no benefits, and are less li!ely to be or"ani-ed o nowadays the deciison to hire a new, permanent employee is treated as a ma6or in*estment 1/D employees is part,time, and 1/A 6obs are part,time 6obs# o part,timers often e cluded from benefit plans and pension plans o if they wor! less than 14 hours a wee!, they don%t .ualify for ?$, e*en if they wor! se*eral 14 hour 6obs o there is increasin" reco"nition that wem ust respond to this, but only +as!etchewan has down so by introducin" prorated benefits co*era"e for most part,timers o part timers earn about 24F less for the same wor! may be due to lower .ualificaitons, or due to the fact that part,timers are less li!ely to be unioni-ed o employers and unions ha*e reco"ni-ed this pay "ap needs to be closed, and some le"islation has been rewor!ed to allow part,time and full,time woe!rs to be di*ided into different bar"ainin" units# o City of 0innipe" allows part,timers to accrue seniority at the same rate as full timers, offerin" the possibility to mo*e into a suitable full,time 6ob as it becomes a*ailable# o 9ro*ince of +as!etchewan has a similar le"islati*e procees for lar"er employers

Temporary and Contract wor! also common, particularly in seasonal wor! and for artists and performers# o need to respond to their needs# o "o*ernment isn%t doin" much to helpH may e*en be part of the problem# +elf,?mployed and (omewor!ers o fewer than 1/10 Canadians are self,employed, includin" lawyers, small retailers, and consultants ;but not farmers or fishermen< o "rwoin" at about twice as fast as re"ular employment, particularly amon" older wor!ers o income may be declinin" o concern about /dependent contractors/ indi*iduals who are putati*ely contracts, but are in fact wo!rin" only for own company o many depndent contractors/homewor!ers ma!e much less than the minimum wa"e, and lose their benefits, e*en thou"h the employment relaitonship is basically one of employee/employer o (omewor!in" e ists in many industries, but the dan"er of e clusion from benefits as well as isolation is common amon" all industries where it is used# o theoretically and le"ally, those who are nominally /self,employed/ but actually wor! continuously for a sin"le client should be considered as employees and "et all the same ri"hts and benefits# but there is no enforcement of employment standards of dependent contractors o also hard to "et information on them o enforcement of labour standards difficult, since re.uires the employee to complain, and they may feel *ulnerable to dismissal perhaps a formal system of auditin" would be better o plus it may be hard to seperate the truly self,employed from the dependent contractor ta i dri*ers are an e ample of an ambi"uous "roup o Because dependant contractors are paid by the piece or by the customer, their actual wa"es may be well below minimum wa"e#

Seeking a Balance: 'anada La+our 'ode *art & 4eview 133D wor!place chan"in", but much traditional wor! remains 10 years a"o re"ulated wor!place were hi"hly re"ulated without much real competition, and much "o*ernment ownership o re"ulations and "o*ernment ownership rapidly withdrawin" o elimination of public ownership of fli"ht o elmination of "rain subsides o free trade a"reements this new competition is brea!in" up tradtional bar"ainin" patterns o new competiti*eness puts wa"e rates and wor!in" conditions bac! on the table# o nowadays, e*en a minor stri!e may lead to serious loss of mar!et share both unions and employers ali*e to this and ha*e reduced wor! stoppa"es accordin"ly pri*ati-ation and "o*ernment cutbac!s o to reduce costs, "o*ernments continue to pri*ati-e 6obs

6obs tend to "o to smaller employers with a much lower rate of unioni-ation often falls out of federal 6uridiction alto"ether and into pro*inical re"ulation has made it harder for unions to tal! to "o*ernment directly concerni"n le"islation the "o*ernment has two roles le"islator and country%s lar"est employer ;who is now cuttin" thin"s bac!< conflict of interestG Technolo"y chan"in" in a number of important ways o automation of many 6obs leadin" to unemployment o increased ability of mana"ement to trac! and control wor! much secondary wor! not done /in shop/ , hori-ontally inte"rated production smaller in*entories, and produces and suppliers ha*e the responosibiity of insurin" steady supply of "oods to manufacturer /6ust in time/ compaction of wor! o each wor!er e pected to do less with more o "rowth in part time, short term, and causual wor!# lower wa"es, fewer benefits, less security o so those will full time 6obs are now ma!in" more than e*er, whil those without arema!in" e*en less o this means less access to pri*ate pension plans and benefits at the same time as the "o*ernment is tryin" to reduce this entitlement o emer"ence of an underemployed and poorly paid underclass of wor!ers, particularly amon" women and *isible minorities trainin", inno*antion, and ad6ustment o wor!ers will ha*e to retrain more often o tranin" are areas were "o*ernment, labour, and mana"ement can all play a role New $n*ol*ment of the parties o labour mar!et is now a buyer%s mar!et, and so unions are increasin"ly ha*in" to play to the demands of the employer o loss of benefits and so on put unions into a defensi*e posture employers can now use collecti*e bar"ainin" to affect industrial chan"in" New +tyles of 7ana"ement o increasinly /flattened/ mana"ement, where members of hte bar"ainin" unit participate in some of the decisions pre*iously reser*ed e clusi*ely to mana"ement# on one hand ma!es the employer more *ulnerable to stri!es, since reduced mana"ement means less fle ibility can%t fill in spots with mana"ers more employer demand for toleration of replacement wor!ers o mana"ement increasin"ly about inn*oation and meetin" new challen"es, not 6ust about enforcin" rules =nion +tructures and 8pproaches o =nions also chan"in", mer"in" and amal"amatin" for "reater efficiency and stren"th o o o

now ha*e broader ran"e of ser*ices and acti*ities, li!e le"al departments and trainin"/research facilities o much more sophisitcated understandin" o ftheir respecti*e industries, contributin" new depth to the bar"ainin" process New +tyles of Ne"otation o "rowin" awareness of the ad*anta"es of interest based arbitration as opposed to traditional %position,based% approach o old style too focused on ma!in" competin" demands and stru""lin" for success did not concern itslef with lon",term problem sol*in", too focused on the demands and the ar"uments in "a*our of those demands o there is a "rowin" reco"nition that we need to focus on buildin" relationships of mutual success and to en"a"e in continuos problem sol*in" o some unions remai susupicious, thin!in" employers only do this when they need the union to cooperate with bad news, li!e downsi-in" o and popular stereotype of collecti*e bar"ainin" remains hi"hly ad*erserial this ma!es it hard for union leadership to con*ice membership that a better informed, participatory method of ne"otiation can be effecti*e o not to say that the labour code should be chan"ed to enforce one style or anotherH the code should try and foster a culture of responsible problem sol*in" and "i*e parties the support they need to brin" that about# 8lso need to consider new en*ironmental obli"ations# &loba Competiti*eness with respect to e ports critical o we need to be competiti*eH without amar!et, there are no 6obs o but we need to consider what 6obs we wish to de*elop and sustain, and the broader social and economic *alues that will support our o*rall competiti*eness o we fact a lot of possibilities low wa"e with low consupmtion hi"h le*el of education allowin" competition in hi"h tech sector inno*ati*e and fle ible wor!force to adapt to ew competiti*e situations o can%t 6ust copy other nations o and want to be aware of the dan"er of a race to the bottom 8merican laws are somewhat similar, but e ist in a pretty different conte t o thin!: cost of education, cost of health insurance, etc# o can%t 6ust translate their system to ours# o

"ew Responses Because state authority ends at the border, and business does not, responses can be different when considerin" the "lobal or transnational dimensions of lar"e multinational corporations# orld #rade +rgani0ation

International Labour +rgani0ation and the

$LB founded in 1313 after 001 aimed at creatin" a transnational re"ime of labour re"ulation

Al+ert Tho%as, #The &L,: &ts ,rigins, "evelop%ent and Future#, 4eprinted in /00:

?*en if the $LB only ended up bein" a scientific resource for employers, wor!ers and students who are see!in" social 6ustice as a "uarantor o finternational peace o or if it only tra!ced the pro"ress in *arious countries e*en then it would be in*aluable in social 6ustice worth it 6ust to hold the attention and pro*ide an outlet for those who dream of social 6ustice, but see no immiediate or effecti*e means of con.uerin" po*erty or hastenin" the ad*ent of a 6uster world#

Werner Sengen+erger, #4estructuring at the !lo+al Level: The 4ole o) &nternational La+our Standards# 133A some ha*e ar"ued a"ainst set re"ulations for wor!in" conditions, sayin" that it would put those countries at a disad*anta"e as compared to those that did not implement them others say that international a"reements to set standards would ma!e sure competition was not at the wor!ers% e pense, and would be basically a code of fair competition between employers and between companies# $LB created out of 001 to address the /community of sufferin"/ o wanted an or"ani-ation to set inernational labour stnadrads in order to relei*e the social effects of international economic competition, and more "enerally, ad*ance social 6ustice in relation to the conditions caused by industriali-ation and its accompanyin" poor wor!in" conditions foundation of $LB the idea that uni*ersal and lastin" peace can be established only if based on social 6ustice and the idea that labour is not a commodity o protects a *airety of wor!in" conditions, li!e re"ulation of labour supply, pre*ention of unemployment, etc# $LB always in*ol*ed in normati*e wor! $nternatioanl Labour conference adopts labour standards o then member states must submit them to local le"islati*e authorities for enactment o not obli"ed to enact them thou"h There are con*entions and reccomendations o once ratiifed, con*entions are bindin" on international commitments o non,ratifyin" members must report on the e tent to which they are ma!in" pro"ress on that issue must e plain what is pre*entin" the ratification o reccomnendatiosn do not create international obli"ations but do "i*e "o*ernemnts "uidance o usually used before a topic has ripened to where it could be a con*ention# reports are scrutini-ed with a *iew to helpin" "o*ernments o*ercome diffiulties they are ha*in" in implementin" standards member states may file formal complaints a"ainst other members o leads to in.uiry, and the recommendation of what steps should be ta!en to meet the complaint# o complaint may be refferred to the international court of 6ustice 7any ratifications of con*entions made so far o includin" some which are seen as fundamental human ri"hts and are paritcularly important to the $LB the record of ratification *aries a lot between countries o most ratifications made by de*leoped countries, whie de*eloplin" countries ratify far fewer

up for debate whether less,industriali-ed countries could e*en afford to apply the minimum standards su""ested by the $LB o $LB has allowed for some fle ibility o but want to a*oid 2 e teremes don%t want to set standards so low that no pro"ress is made don%t want to set standards so hi"h most countries could not implement "enerally fundemental human rih"ts standards should be independent of de*elopment o stuff li!e ri"ht to or"ani-e for e ample substanti*e stndards, li!e wa"es and so on, are usually based on fle ible standards o minimum wa"e law re.uired, but the actual minimum wa"e is up to the "o*ernment# but $LB is ultimately aimin" for uni*esality of stndards, wihtout re"ional *ariation, since re"ional *ariation would merely accentuate rather than reduce differences in de*elopment o also would mean that there would be people in some re"ions who would "et /sub,standards/ su""estin" they are /sub,human/ use of technical cooperation, throu"h education, consultaiotn and technical assicance has been used to help de*elopment o settin" up public wor!s, health clinics, formin" rurla coops, etc# o also aimed at achie*in" pro"ress towards ratification and compliance with international labour standards# o

A Regional Endea&our: #he "orth American Agreement on Labour Cooperation N81T8 has been in force since 3A, and ma!es no mention of labour issues the North 8merican 8"reement on Labour cooperation ;N88LC< addresses failures of any of the three "o*ernments to enforce its own labour laws# each party is supposed to ensure that its labour law pro*ides for hi"h labour standards, and aim to imro*e them parties promise to enforce e tant law parties must ensure that there is due consideration of complaints must ma!e sure those with a le"al interest ha*e access to 6ustice and that labour law and collecti*e bar"ains can be enforced decision ma!in" bodies must be fair, e.uitable and transparent cannot sue where failure to in*esti"ate or enforce is the result of a bona fide policy decision to allocate resources to labour matters with a hi"her priority

,rganisation )or $cono%ic 'oAoperation and "evelop%ent N88LC lin!s to"ether the N81T8 countries labour laws to the trade re"ime emphasis is on transparent and effecti*e enforcement of e istin" law o also, cooperation and consulation abon" the National 8dministrai*e Bffice and the 7insiterial le*els# may result in fines,but not sanctions o anyone with a reco"ni-ed interest can submit a complaint, but it may ta!e alon" time to resol*e o trade sanctions only possible for child labour, minimum wa"es, and B+(8, but not collecite*e bar"ainin" ri"hts#

Complaints must be both trade,related and co*ered by mutulally reco"ni-ed labour laws, and there must ha*e been a pattern of non,enforcement of the rele*ant labour le"islation# this process is multi step, and ta!es a lon" time o it has ne*er been followed throu"h to completeion in any of the SE0 complaints that ha*e been made thus far# +o some ha*e concluded it is ineffecti*e

NAAL' Secretariat, 'o%%unitations su+%itted to the BS National Ad%inistrative ,))ice 9assa"e deals with a public communication alle"atin" anti,union related closin"s in Ouebec# o The alle"ations related to attempts to or"ani-e a 7ac)onald%s =+ N8B as!ed for infor from Canadian N8B o there was a meetin" of the N8B and union representati*es, so Ouebec a"reed to study sudden anti,union plant closures# Ouebec .uic!ly came to an a"reement to resol*e the issue, so the unions withdrew their compliaint ;it ha*in" been remedied< N88LC decided to study the problem and can*assed practices across North 8merica Thus, a success story

Lance 'o%pa #NAFTACs La+our Side Agree%ent and &nternational La+our Solidarity# 2001 N88LC may be a new arena for transnational albour action o allows unions to wor! across borders to help labour mo*ement N88LC is limited and is not a full,fled"ed enforcement mechanism o but we need to be practical about how far "o*ernments will hand o*er so*ererei"nity to international tribunals N88LC has produced some importat porducts o a number of complaints on a lot of issues, and some "ains were made o not throu"h direct enforcement, but by puttin" political pressure on "o*ernments# 8 series of /success stories/ follows# all of these in*ol*ed alliance between "roups that rarely otherwise communicated o not rapid pro"ress, but useful in the slow march towards pro"ress =nions will ha*e to wei"h the *alue of usin" this slow e pensi*e process o espeically because "ains will be slow and indirect, by creatin" normati*e chan"es, influencin" public and "o*ernment +houldn%t e pect that "o*ernments are "oin" to bow down towards N88LC o not realistic to e pect this a"reement to create an international labour tribunal capable of ta!in" e*idence and o*errulin" national courts Basically this is a cross,border o*ersi"ht system, with limited enforcement powers, whcih "uards so*erei"nity o*er !ey elements of the national system# N88LC platforms o N88LC "i*es labour or"ani-ations from different countries the platforms with which to address problems in ohter countries they would otherwise ha*e no access to# no citi-enship re.uirements or re.uirements that a complainat ha*e a material sta!e in a case

so "i*es "roups an ability to demand in*esntations and publci hearin"s in spaces and 6urisdcitions they would otherwise not be able to# $s it worth itG o it ta!es a lot of time and money and doesn%t really en"a"e wor!ers o wor!ers need to en"a"e in direct action, but they can%t do so all the time plus the balance of power is a"ainst them o labour a"enda needs to be a plan B of tryin" to ma!in" incremental "ains and e ploit national le"al institutions# =nions need to use /soft law% mechanisms, because there are no hard law framewor!s which would help them# Clearly in each case choices about whether it is worth it must be made# but protests and stri!es also ta!e a lot of resources, and are only one side of the sotry o need to both ta!e a firm position a"ainst "lobal capitalism o but also e ploit the pressure points in e tant le"islation in order to ma!e incremental pro"ress N88LC has been able to put a lot of scrutiny and condemnation on parties not in compliance and business has claimed that N88CL is dan"erous and could be e ploited ;fri*olouslyG< by unions# 0ashin"ton 8pple Case o deals with 7e ican farm wor!ers in 0ashin"ton +tate whose attempts at unioni-ation were crushed o 8merican and 7e ican unions decided to de*elop a N88LC case on these issues o after considerin" the costs and benefits to each union, it was decided to complain by 7e ians and filed in 7e ico o case held in me ico city, and attended by 7e ian mi"rants, unions, and 8merican unions standin" side by side lots of other "roups 6oined the 7e ican wor!ers "roups at the hearin" o 7e ican labour department issued report demandin" conslutations, and a"reed to a pro"ram of public outreach and hearin"# +o basically N88LC pro*idd concrete means of pressin" the industry to impro*e conditions or ris! losin" the 7e ican mar!et, pressure the "o*ernment of 7e ico, hold public hearin"s in the =+, pressed official 7e ican labour unions allied to the "o*ernment to ta!e their own action and file a complaint in a similar situation in main, and so on# 8ll of this happened in the media eye +hows how coalitions of unions, humanri"hts acti*ists, and other pro"ressi*e communities can use N88LC o not a perfect process, but does create space and platforms that can be sued to unite "roups across frontiers and create new norms, mobilit-e actors, call to account "o*ernments and corproations, etc# o in short, brea! up old framewor!s and start shapin" new ones# o

@arry Arthurs #4einventing La+our Law )or the !lo+al $cono%y: The BenEa%in Aaron Lecture# 2001 9art of a speech in which it may seem as if the future of labour law is pretty blea! but he has some hope that a new labour law may be emer"in" o new labour law has not yet reached 8merica, but is shapin" the labour law systems of 8merica%s competitors and trade partners

o may leech bac! into 8merica $nternational treaties and co*entions o =+ has said that in order to 6oin 0TB must comply with core labor standards of $LB o may e tend reach of compliance, e*en thou"h =+ has not ratified these same core con*entions so may re.uire 8merica to ratify as well o N81T8 means N88LC this has led to a series of complaints that ha*e embarased employers, and in the case of the 8pple wor!ers the 7e ican trade unions and the 7e ican "o*ernment helped launch new international trade mo*ement# so this could be the modest be"innin" of a transnational labour re"ime o treaty of 2ome established in ?= "o*erns wor!place discrimination, plant closin"s, and a few other e amples difficult to ima"ine this happenin" elsewhere, but it does show that treaties may trump domestic labour law and are le"ally bindin", soa potetional source of "lobal labour law Best 9ractices o best practices are essential where e*er human capital *aluable o *itues cycle about law, mana"ement and wor! o +eniority, .ulaity circles and fle ible production are all e amples of such a *irtous cycle a "ood idea that is past around not throu"h law but throu"h dissemination o lawyers may act to cross,polinate, by mo*in" "ood ideas from one client to the ne t Joluntary Corporate codes of conduct o increasin"ly common as a result of pressure from unions, consumer or"ani-ations, and human ri"hts "roups and in response to pressure from "o*ernments and N&Bs o not le"ally bindin" and wholly *oluntary o some say these codes of conduct should be made *oluntary and their should be some way of /ratchetin" up/ enforcement mechanisms# o many of thsee codes are purely internal and can only be accessed by firm%s own compliance bodies *ery few in*ol*e independent third parties or neutral enforcement o ran"e widely in their comprehensi*eness and specificity o many are merely words on paper, others ha*e produced ubstanti*e chan"e o so not a replacement of labor le"islation, but somehtin"# =nions are ma!in" some contrbutions o both throu"h national unions and international labour bodies, as well as ad hoc union allicance built around specific disputes o not much success in buildin" solidarity across national boundaries o but some battle ha*e been won o unions ha*e been able to do on a small scale "lobally what they aspire to do on a lar"e scale nationally new social mo*ements ha*e a bi" impact o women, consumers, uni*esity students, en*ironmentalists, etc#

often wor! with unions to arouse public indi"antion a"ainst abusi*e labour practices# and to brin" pressure on retailers, in*estors, and "o*ernemnts# hard to see how these thin"s could come to"ether to create a comprehensi*e system of "lobal labour law, but this is basically how we eneded up with the /old system/ o there was collecti*e bar"ainin" and labour law before the 0a"ner 8ct, and union,sponsred welfare funds before social security, and so on# o so it may be possible that these scattered points of pro"ress may ultimately add up to the new labour law# o