Ch 1: Intro to Labour Law & Collective Bargaining
Three inter-related ER/EE regimes: common law, CB (Wagner – EEs have no power, Us are good, Us and ERs are adversarial) & direct statutory regulation
Primary L&E jurisdiction is provincial (s92 CA), but some fed
Procedure: organizing period (who’s eligible)→certification process (need 45% to apply)→CB (good faith)→industrial conflict (lockout/strike)→K admin
LRB: regulates strikes & CB, remedial s133, exclusive jurisdiction (s136/139)
Ch 2: Charter & CB
History: AB Reference (police s2d protects right to join/form U but not CB and right to strike)→PIPS (NWT nurse s2d protects freedom of association but not foundational activities for association’s purpose)→Lavigne (prof upheld compulsory pay of dues through CA clause, not s2(d) right, opens door to purposive approach)→Delisle (RCMP s2d does embody right to form U but Act saved by s1)
Contemporary: Dunmore (farm & repealed CAs) recognized govts have duty to enact labour law to protect vulnerable groups under s2d – if a law or omission makes it impossible for the group to achieve workplace goals, it’s illegal; Health Services (HEU K out) said that s2d protects U members capacity to CB on fundamental workplace issues (effect of legislation is what matters) but no particular model or outcome required→ have to ask 2 Qs, does leg. substantially interfere w/ ability to CB & how does it impact collective right to GF negotiation/consultation?; Fraser narrows HS – s2d only protects right to CB where association activity is made impossible by laws or gov’t action; MPAO (RCMP)expands s2d protections beyond HS by including employee choice and employee independence to ensure CB is done meaningfully, gets over the idea that s2d rights ruin historic compromise
Charter expectation for GF negotiating: parties must meet, commit time, meaningful dialogue, exchange & explain positions, and make reasonable efforts (Health Services)
Ch 3: Direct Statutory Regulation – Employment HR
Direct statutory reg has four functions: safety, socioeconomic rights, recognizing human dignity, & social welfare; laws exist to protect workers and provide minimum rights that ERs can’t K out of & EEs can’t waive
ESA Coverage: if you’re not excluded, you’re included→ need to be ‘EE’ under the def and not excluded (fully or partially) under the regs; can’t K out w/o variance from Director
ESA Enforcement: very weak – political budget cuts, currently relies heavily on ER self-regulation, accessing complaint procedures is hard (kits)
ESA 2002 Amendments: s3(2) & 3(4) exclude all EEs covered by a CA from a section(s) of the Act if the CA uses any language re: area of concern (Peace River stat); s3(7) downloads dispute resolution to Us and ERs; s5 Act applies if CA is silent on any of the matters under s4
HRC protection: s13 covers 3 actions - refusal to employ, termination, & discrimination based on the 13 absolute & 1 conditional prohibited grounds
HRT powers: can provide comp for feelings & dignity, which LRB can’t
Unified approach: pre-Meiorin (fire) there were two silos of discrimination, ‘direct & intentional’ & ‘indirect/adverse affect’, Meiorin rewrites the law on discrimination→ ERs now have a + legal duty to ensure equality at work & have to accommodate an EE short of undue hardship
SELI test for making a prima facie case: 1) complainant must show on BoP that she shares identifiable characteristic with a prohibited ground 2) must prove adverse treatment 3) must show adverse treatment based on ground
Note: can be tough to prove that adverse treatment isn’t based on different skills, ability, union K, seniority, etc
Meiorin test for discrimination: complainant must make a PF case of discrimination (SELI^ Millenium), then onus shift to ER: 1) obj element – is there a rational connection between general purpose for which impugned standard was introduced and obj job requirements? (if no, no BFOR so ER is being discriminatory) 2) subj element – did ER adopt the particular standard in an honest and GF belief that it was necessary to fulfill a legit work-related purpose? (courts tend to assume yes) 3) is the standard reasonably necessary to accomplish the legit purpose? (must be impossible to accommodate EE w/o imposing undue hardship on ER) /// IF answers are all yes, ER can justify conduct as BFOR; IF no, ER fails to establish defence to charge of discrimination and court can strike down law or practice and award $
Meiorin test for ER undue hardship: 1) apply non-exhaustive factors from Dairy Pool list (financial cost [important, contextual, Nfld Treasury], interchangeability of workforce and facilities, prospect of substantial interference with rights of other EEs) 2) analyse proposed standard using applicable Qs from Meiorin: has EE investigated alt approaches that aren’t discriminatory, such as being more individual; if yes and would work, why not implemented; necessary for all EEs to meet the same single standard for ER to accomplish legit purpose; way for job to be done that’s less discriminatory and accomplishes legit purpose; standard properly desgined to ensure qualification is met w/o placing undue burden; have other parties obliged to assist in search for possible accommodations done so (could include U – Renaud janitor) bottom line: ER has to ensure that employment measure won’t substantially interfere with other EEs, but EEs have to be prepared to bear substantial inconvenience for individual accommodation of the EE (and ER has to prove it’s made every effort)
Note: Grismer (eyes) expanded duty to accommodate to provision of services; no duty to accommodate absence from work (ON SC)
ER duty to investigate: prompted by Meiorin duty to accommodate short of UH – must investigate the nature of an EE’s disability (severity, impact, and anticipated duration) before deciding re: possibility of accommodation. In Cozon and Rozon, even though accommodation was not possible, ERs had to pay damages for dignity/self-respect for not investigating at all.
Renaud test for U undue hardship: U duty to accommodate only arises if U is party to discrimination (by participating in making the rule or by impeding reasonable efforts of EE to accommodate); test is met by showing that if the proposed accommodating measures were adopted, other EEs face prejudice
Duty of complainant: must assist in search for reasonable accommodation (Renaud); must accept them or quit when they’re offered – no entitlement to perfect accom (O’Malley)
Sexual harassment: ‘unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment… can be subtle or overt’
→SH is discrimination based on sex & any harassment tied to a prohibited ground is discrimination (Janzen waitresses)
→1) if one person is using perceived power over another (subj) and 2) the conduct is objectively unwelcome, SH is found (Mahmoodi)
ER liability: if someone’s at work and they’re being harassed, ER is liable → doesn’t matter how many EEs there are or if ER knew; HR laws are meant to be remedial and ERs have a duty to provide safe workplaces (Robichaud)
ER liability remedies: ask 1) what has ER done to try to prevent discrimination 2) what did ER do once it found out – if ER knew, did take prompt & effective action (heavy burden)? If ER didn’t know, should it have known (if no, small remedy)
Ch 4: Trade Union Regime
s139: LRB determines whether a) person is ER or EE, b) org/assn is the ER’s or the U’s, l) if someone’s in or out of the U, n) who’s a dependent contractor
Potential parties to CB: EE, ER, U, DC (not IC)
EE: s1(1) – person employed by ER (start with everyone included); have a protected right to join unions
DC: s1(1) – person who performs work for another she’s in a relationship of economic dependence with on their terms; looks more like EE than IC (and people who look like EEs should get the same rights (Pacific Press))
IC: line between DCs and ICs is fluid, fact/context specific, label in employment K isn’t determinative, key factor is control over work and manner in which it is performed (Semiahmoo Mgmt)
ER: criteria for determining ER from York Condo – who’s exercising direction/ control over EE performance; paying; imposing discipline; hiring; has authority to dismiss; perceived to be ER by EEs; & is there existence of intention to create EE/ER relationship (key: exercise of fundamental control)
Factors for determing DC or IC: how industry operates, type of work & its source, nature of DC/IC’s operations, org of ER’s operations and degree of C’s participation in it, Ks between parties, type & extent of control & direction exercised by ER, % of C’s income that comes from ER, opportunity for C to profit from independent entrepreneurial judgment, C’s opportunity for economic mobility and whether C advertises/solicits elsewhere
Trade unions: only a trade union as defined in s1 can represent BU members; definition imposes four requirements for certification: 1) viable org that can assume CB obligations 2) org must have provincial presence 3) org must have as one of its purposes the reg of EE/ER relations (can just be statement in constitution) 4) properly drafted constitution which has been submitted to, and adopted by, its members (most critical deficiency in Rempel Bros)
Org can be disqualified as a TU under s31 a) if it’s dominated/influenced/ formed by ER (Rempel Bros) or b) if it discriminates on a prohibited ground
Exclusions: s1(1) EE doesn’t include someone who performs functions of manager/superintendent or is employed in a confidential capacity re: labour relations or personnel; be careful because exclusion denies access to CB
Managers: assign some EEs to mgmt side b/c it needs undivided loyalty and protects integrity of BU; mere supervision isn’t enough & must consider actual power exercised (Burnaby) test for mgmt is effective determination
Mgmt factors: 1) discipline & discharge – requires undivided ER loyalty, work environment highly influences how D&D are discharged, in professional setting sufficient just to have the power, even if not exercised (VGH) 2) labour relations input (CB input, involvement in grievances process and essential services, and access to confidential files) – requires undivided ER loyalty, avoids conflicts of interest (test is potential CofI, based on actual duties and power to act) (VGH) 3) authority with respect to hiring, promotion, and demotion – mainly because it costs the ER $ (Cowichan) 4-9) less important – supervising work, independence of op, supervising subordinate supervisors, evaluation EE performance, authorizing OT & leave, policy setting (BC Ferry)
Mgmt team concept: common law ground of exclusion→ someone in special circumstance that produces possible CofI (assistants to execs, confidential policy advisors, relatives, significant owner in small business) – narrow ground of exclusion (Highland Valley Copper); context specific (AMS)
Confidentials: excluded either because they deal with labour relations or personnel matters b/c the info they have may place them in conflict with the BU; test: 1) person must be employed w/ these functions substantial & regular part of job 2) must make judgments on the confidential info and act on it 3) ‘confidential info’ = U doesn’t have access to it (Central Park Lodges)
Ch 5: Organizing Drive
History: ERs used to use many tactics to break up organizing campaigns→ U would then hold a recognition strike (basically pull all EEs out of work to drive ER into financial submission), often got violent [these are now banned]
S4(1) Wagner model protects right to organize in 3 ways: 1)prohibit ER retaliation/ interference with U activities of EE 2)certification 3)duty to bargain in GF
OD is the 1st step to unionizing, happens over a 90 day period→ U uses the card system to show support (need 45-50% of EEs to sign cards before applying for certification; ER has to pay the fee, which is $1 in BC)
Raid: when two unions compete to represent the same workers; Board usually won’t police unless they breach s9; incumbent U entitled to defend itself against raid campaign (Delta Hotels Christian)
ULPs during OD: maj centre around D&D, starting point is s4(1)→ every EE is free to be a member of a U and participate in U activity; s6(3)→ ER can’t discriminate against EE for joining a U/U activity (very broad provision)
→Interference: broadly prohibited by s6(1) at all times, EEs entitled to freedom of choice re: Us, based on assumptions that 1) EEs are susceptible to ER influence and 2) ERs will exercise power to dissuade →cases: ULP for ER to encourage in-house org as alt to U (Western Saws); ULP for ER to prefer one U over another (Excel Electric)
→D&D: discipline for U involvement prohibited by s6(3)(a), can only D&D for proper cause↓ during organizing campaign under s6(3)(b) (chilling effect), s6(3) still in effect even where certification not successful & no formal U under s3(a) →cases: mere presence of OD activities doesn’t mean ER must stop managing (Country Radio) legit reason for discharge doesn’t relieve ER where an illegit reason also exists, relatively high BOP on ER, look to context and 4 factors↓ (Barrie); BOP on ER to show credible explanation for discipline (Lakes)
Test for proper cause: ER has to provide reasoned explanation that objectively demonstrates a rational connection b/w alleged misconduct and discipline ER chose to impose; ER must prove not even a taint of anti-U motive for decision to D&D (although more deference to findings of cause here than post-CA); consider all factors, not just incident that gave rise to discipline (must use the arbitral process); give greater deference to ERs for explanation of connection – less experienced than unions during OD (White Spot wine); poor investigation leading to D&D can lead to the interference if anti-union motives, BUT even if ER investigation doesn’t meet arbitral standard, if they attempt to do a sufficient investigation in their circumstances, can show deference to ER and find no ULP (Cheshire Homes)