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LABOUR LAW, BLACKETT 2003
By Daniel Moure
QLC Provisions 3
Employees Rights/Wrongs 3
Union Rights/Wrongs 3
Employer’s Rights/Wrongs 4
Labour Board/Commissioner/Minster Rights/Wrongs 5
Accreditation Agent 5
Collective Agreement 6
1. INTRODUCTION 6
Constitutional issues: 15
Central Western v. UTU (1990 SCC) 16
2. Status Under CB Legislation 19
a. Who is an employee? 19
ILO Committee on Freedom of Association, Report 309 (1998) 19
ILO Committee on Freedom of Association, Report 316 (1999) 19
Delisle (1999 SCC) 19
Dunmore (2001) 24
b. Employee vs. Independent Contractor 33
Natrel (2000 QCA) 34
Maritime-Ontario (2000, Cda IRB) 36
Mackie Moving (2002 Cda IRB) 37
c. Temporary Employees 40
Pointe-Claire (1997, SCC PQ) 40
3. FREEDOM OF ASSOCIATION 45
a. Freedom of Association 45
Lavigne (1999 SCC ON) 45
Advance Cutting (2001, SCC PQ) 57
b. Unfair L Practices & Anti-Union Animus 72
ACTRA v. CBC (1995 SCC) 72
c. Emper Speech & Unfair L Practices 76
City Buick Pontiac (QTT 1981) 76
Gauthier C. Sobeys (TT 1995) 77
SCCEP C. Disque Amérique (TT 1996) 77
Teamsters Submission to NAALC re. St-Hubert McDonald’s (1998) 78
4. ACQUISITION & TERMINATION OF BARGAINING RIGHTS 80
Re IPX Couriers (2001 CIRB) 80
Desjardins des Chutes-de-la-Chaudière (2001, TTQ) 82
Subcontracting 84
Ivanhoe (2001, SCC PQ) 84
Sept-Iles (2001, SCC PQ) 89
5. INDUSTRIAL CONFLICT 91
Secondary picketing: Overview: 91
K-Mart (1999 SCC BC) 92
Pepsi-Cola (2002, SCC SK) 95
6. THE COLLECTIVE AGREEMENT AND ARBITRATION 98
Rodrigue Blouin, “La Commission des relations du travail du Québec” (2002) 99
Québec (Commission des droits de la personne et des droits de la jeunesse) (2002 QCA) 100
7. THE INDIVIDUAL EMPEE UNDER THE CA 102
BCGSEU (Meiorin) (SCC 1999) 102
Duty of Fair Representation 105
Steele (1944 USSC) 105
Tremblay (2002 SCC from PQ) 106
Noel v Société d’énergie de la Baie James [2001 SCC] 108
QLC Provisions
Employees Rights/Wrongs
S.3 Right to belong to employee’s association of choice.
S.4 Cops only in cop unions.
S.13 No one to use intimidation or threats, fines pursuant to S.143
S.16 Complaint in writing within 30 days for s.15 violation
S.19 Crt. May order payment of (1) indemnity and (2) interest from date of filing.
S.36 Right to confidentiality if member of union (but what if he is not??).
S.47 Must pay union dies whether (1) member or (2) not.
S.67 CA binding on all present and future employees in unit.
S.71 Recourses arising out of CA are prescribed by 6 months.
S.100.8 Cannot refuse to answer arbitrators question during grievance arb. However, incriminating answers cannot be used against him.
S.107 Can’t strike until union has been certified under s.58.
S.142 Declaring or instigating illegal strike, fine.
S.142.1 Strike breakers in contravention of 109.1 liable to fine (says employer, check this)
S.144 General fine for violations
Union Rights/Wrongs
S.5 No solicitation during work hours
S.6 No meetings on employers premises unless certified and given permission by employer.
S.20.2 (1) Strike must be authorised by secret ballet by majority of members in unit and majority of those who decide to vote, (2) must give notification of secret ballot at least 48 hours before. Failure only gives rise to fine (s.20.4).
S.20.3 Can only sign collective agreement if approved a la 20.2. Failure only gives rise to fine (s.20.4).
S.21 (1) Absolute majority, then right to be certified or ballot . (4) can be one employee except (5) farm workers
S.20.1 (1) Every election to office by secret ballot (2) failing provisions in by-laws to contrary, once a year.
S.20.2 Min 48 Hr. Notice of strike vote.
S.20.3 No signing of collective agreement unless approved by majority of members who exercise vote.
S.25 (1) Apply for certification by petition to labour commissioner general.
S.36.1 What is a member of union for assessing representative character?
1. Employee in unit..
2. Has signed membership application.
3. Has personally paid at least $2 dues.
4. Does all this before the assessment date.
5. No other requirement set by the union (in by-laws) is taken into account (36.1(2))
S.43 Certification of one union annuls certification of other.
S.44 Cancellation of certification cancels renewal of CA and all rights under that CA.
S.45(1) Union remains if undertaking sold in whole or part (other than judicial).
S.47.3 Grievance within 6 months (written) if discrimination/bad faith by union.
S.53(2) CA negotiations in good faith.
S.53.1 Cannot refuse to negotiate CA.
S.56 Bound to attend meetings called by conciliation officer.
S.60 Cannot advise employees not to work for status quo between petition and right to strike.
S.69 Can act for employees under CA without requirement of employee assigning claim.
S.71 Recourses arising out of CA are prescribed by 6 months.
S.100.8 Cannot refuse to answer arbitrators question during grievance arb. However, incriminating answers cannot be used against him.
S.107 Can’t strike until union has been certified under s.58.
S.142 Declaring or instigating illegal strike, fine.
S.144 General fine for violations
Employer’s Rights/Wrongs
S.10 Right to belong to employer’s association of choice.
S.12 Don’t interfere or finance formation or activities of union, or participate in union, fines s.143.
S.14(2) No hiring discrimination or threat, etc, based on exercise of right under Code, fines s.143
S14(2) Employer can dismiss only if good reason, onus is on employer that not anti-union motivated.
S.15 If S.14 then (a) reinstatement and damages but shall deduct any money earned in interim (b) order to cease doing what they were doing.
S.17 Reversal of burden of proof.
S.25 (2) post copy of petition for application conspicuous place with list of employees who it affects within 5 days. Failure may mean fine under s.144.
S.38 Must facilitate holding of vote.
S.45(2) New employer bound by CA on sale.
S.47 Must (1) & (2) deduct union dues and (3) remit these to union each month.
S.47.1 Disclose financial statements to members every year.
S.47.2 Represent all employees in good faith.
S.53(2) CA negotiations in good faith.
S.53.1 Cannot refuse to negotiate CA.
S.56 Bound to attend meetings called by conciliation officer.
S.59 Cannot change conditions of employment until right to strike or lockout is exercised.
S.63 Not bound to dismiss employee because not member of union unless (a) employed contrary to CA, or (b) employee acts on behalf of employer against the union.
S.68 Bound by Employers’ association CA.
S.71 Recourses arising out of CA are prescribed by 6 months.
S.100.8 Cannot refuse to answer arbitrators question during grievance arb. However, incriminating answers cannot be used against him.
S.141 Failure to acknowledge certified union or negotiate in good faith is liable to fines.
S.142 Illegal lockout, fines up to $50k
S.144 General fine for violations
Labour Board/Commissioner/Minster Rights/Wrongs
S.25 (2) send copy of petition for certification to employer.
S.27 Notice of petition for accreditation in public register (kept at Ministre d’Emploi)
S.31 Shall not grant certification if no s.12 compliance.
S.32 Determine bargaining unit given disagreement in s.28(c).
S.37 Hold secret ballot for certification if rival unions with 35-50%.
S.39 May decide is person is employee, etc..
S.46 Bound to rule on S.45.
S.47.4 Minister appoint investigator if grievance under S.47.3.
S.49 May revoke or revise any decision.
S.50 Must allow parties to be heard if revoking or revising and give 5 days notice of hearing.
S.51 Decision must (1) be in writing and (2) filed with the labour commissioner general
S.52.2(3) Determine date of expiration of CA if not clearly indicated.
S.55 Designate conciliation officer.
Accreditation Agent
S.28 (a) if agreement on bargaining unit and representative then must certify and indicate which employees are in the bargaining unit; (b) if agreement and 35-50% have signed membership cards, then hold vote, if majority of employees vote (secret ballot??) for the union, then certify; (c) if no agreement then wait to see if employer files a report (within 15 days of receiving petition), if not, deemed agreed and certification as per a & b; (d) disagreement as to individual employees not fatal if bargaining unit is agreed to, certify as per a&b.
S.29 Suspend investigation if s.12 violation.
S.30 Make summary report when certification not granted for LRG, copies to parties.
Collective Agreement
S.62 Can contain any employment related provisions provided not contrary to PO or prohibited by law.
S.64 Valid even though a clause may be invalid.
S.65 Valid for not less than a year, 1st CA max 3 years.
S.66 If no term, valid for a year.
S.67 binding on all present and future employees in unit.
S.68 Only one CA.
S.71 Recourses arising out of CA are prescribed by 6 months.
S.72 Takes force only on filing with LCG.
S.73 Retroactive to date of “coming into effect”, or failing that, signing.
1. INTRODUCTION
· Beatty’s Q: who does CB actually benefit?
o (i.e., what class of workers?)
· See also other notes for essay
· Also class notes re. changing nature of empment relationship
· “balance” mentioned ad naseam in these cases.
What are the underlying objectives of labour law (LL)? Is LL still able to meet them?
Labour Law vs. Employment Law:
Employment law: usually thought of as individual employment relations, master-servant law where 2 presumed equals K. Initially thought of as embodying the classic K.
Labour Law deals with collective approaches. Attempts to recognize that individual employees acting on their own might suffer an inequality of bargaining power with their employer and need collective action and protection that enable them to contract with their employers. This approach to regulating labour relations is very much based in the industrial world and Fordist/Taylorist (?) paradigm. How does the fact that employers can simply leave and go somewhere else fit into our model? [Think of City Pontiac and MacDonald’s].
Challenges to validity and viability of labour law as a form of regulation today:
Does it continue to provide the benefits it is reported to provide?
· Mechanisms that were meant to ensure that justice in the labour context was not abstract, but something that employees and employers could rely on—i.e. to ensure that production did not cease in case of problems or grievances.
· Mechanisms such as arbitration have become costly, and lengthy… how effective are they, what else can we use?
· Recent legislative changes in Quebec were meant to solve disputes expeditiously. Is there a harmonization between QC and federal legislation?
· NAFTA context, side agreement (NAALC) on labour cooperation adds to development of labour law.
· In 2002, several challenging and shocking SCC decisions came out that have shaken up Labour Law. Now we need creativity and thought that moves beyond traditional categories to think of how workplace and labour relations should be structured.
The distinction between productive and non-productive types of labour is at the centre of ideological debates. Work is changing in the way we know it. Technology, etc… many cornerstone organizational notions that characterize labour relations law are changing. The traditional paradigm (male breadwinner, nuclear family) has been challenged.
How does the law seek to mediate productive relations?
3 legal regimes to regulate employment relationship:
1) Master-servant law: law controls and mediates it. Classic manner of looking at employment is one in which master and servant are both atomistic, self-interested individuals engaging in agreements to exchange of money for productive work. Shift toward market framework of labour power as main commodity. This vision was imposed by the common law courts even where individuals asked for older, more paternalistic approaches to be taken—signals a strong shift towards market economic attitudes. Strong shift from more personal relationship between employers and workers. (see Fox)
2) Collective bargaining: assumes that workers are not acting under individual K of employment but acting as solidary collective to redress an inequality of bargaining of power à collective K (how does this affect our labour as commodity approach?)
Initial approach was criminalization (see Arthurs)
Beatty questions how effective collective bargaining is for mediating employer-employee relationship. Critique: 1) privileges those who are already privileged – e.g. physicians vs. laundry attendants. 2) Majority rules. 3) Not really based on egalitarian norm, rather it is market-based.
Paul Weiler justifies collective bargaining on different grounds: has empirical effect of reducing inequality overall. Justified through its practice. Decreases broader societal economic inequality and decreases other forms of inequality such as racial inequality (perhaps by removing individual characteristics from the process—like race etc.). He says the core concern of unions has never really been monetary gain, but has really been much broader and more focused on the status and conditions under which the workers work, i.e. hours etc. Feels that collective bargaining has promoted greater societal good.
Collective bargaining, particularly in an environment with less state regulation, may have set the standard as to what the norms are. Once legislation—like min. wage, min. hours, safety standards – came in, this changed the landscape. But unions continued to push the standard. However, it may now be hard to see differences in work conditions between unionized and non-unionized work environments. How much have the unions been responsible for this? How does legislation affect what unions themselves can do? Interesting interplay, especially historically, between unions and legislation. Look at development of institutions on which people can rely to improve the workplace context.
3) Direct statutory regulation: the most contemporary approach—with the state intervening in a protective fashion to ensure that minimum standards exist in the labour relationship. This approach is meant to supersede even the collective bargaining relationships. Problem with legislation is that new government may just come along and change it. Development of the social welfare state, HR legislation, development of pluralistic societies—quite a broad range of legislation meant to establish norms but also putting into place competing mechanisms for the resolution of disputes. What happens if you have a claim of harassment in the workplace on the basis of a ground listed in the QC charter and you want to go to the HR commission as opposed to using normal labour relations mechanisms. There has been a recent attempt to streamline choices, and unionized workers may in fact be restricted in their options. This dimension stresses capacity of state to act.
But Arthur readings downplay role of state in regulating relationships between employers and employees.