QUEBEC
1. Reforming the Labour Code
2. Court
of Appeal Decisions
3. Decision of
the Pay Equity Commission:
4. Arbitration
Award:
5. Evolution of Minimum Wage
1. Reforming the Labour
Code
The Quebec Labour Code has just undergone a reform
which, all things considered, has been much more feeble
than what most intervening parties were wishing. We will
examine the most noteworthy jurisdictional and substantive
modifications introduced by the reform of The Labour
Code, approached in this same sequence.
a. Jurisdictional changes:
As regards the jurisdictional aspect, the new Labour Relations
Commission (LRC) is now a specialized court exercising
a civil competence devolving from The Labour Code and
other laws. Unlike the Office of the Labour Commissioner
General, which it replaces, the LRC is a legal entity distinct
from the Ministry and self-governing. The Commission, its
commissioners and staff benefit from a global immunity,
and those who make investigations
have an additional special immunity granted to commissioners
appointed pursuant to The Act Respecting Public Inquiry
Commissions.
From now on, there shall be a five-year term of commissioner’s
office, renewable for the same term by the Government.
As for the new labour relations officers, they might be
considered to take over the functions exercised by the
certification agents, within the scope and for certification
purposes.
As to the role and competence of the new LRC, it will
from now on be invested with the responsibility of ensuring
a diligent and efficient application of the whole Labour
Code. Therefore, it received a general civil competence
regarding all complaints invoking an infringement to the Code.
The LRC’s competence is exclusive, except notably
for public and broader public sectors, which are still
under Essential Services Council’s jurisdiction.
The LRC competence’s area of activity now includes
situations that used to be excluded from the OLCG’s
jurisdiction (e.g. situations following strikes, work slowdowns
or lock-out, or use of strike-breakers). This also applies
to a union’s breach of its duty of representation.
As mentioned previously, the LRC has various powers of
investigation and benefits from the application of the Act
Respecting Public Inquiry Commissions. It also has
powers of conciliation, which remains, of course,
voluntary. The powers of decision and review are
conducted either by the labour relations agents or by one commissioner or a
panel of three commissioners. Moreover, it will have the power to review or
revoke decisions, only upon request from a party, but this does not prevent
a party to immediately apply to the Superior Court for a judicial review.
The final nature of the LRC’s decisions resulted
in the abolition of the Labour Tribunal, appeal board of
the labour commissioners’ decisions. This aspect of
the reform was highly criticized by numerous intervening
parties, especially by the Quebec Bar, but in vain. Invoking
administrative convenience and concerns for simplified
and fast procedures, the legislator decided that the sometimes
delicate matters governing labour relations would from
now on only come under the LRC’s jurisdiction, itself
submitted to the sole general control powers of higher
courts.
When a hearing is required, all disputed matters are treated
according to an adversarial approach between the interested
parties. As to the rules of proof and procedures, the Commission
can hear the parties in every manner provided for in its
rules of proof, procedure and practice authorized by The
Labour Code. Every Commission’s decision must
be made in writing, motivated, signed and served to the
interested parties, the whole within the legal delays,
which depend on the type of application filed to the LRC.
For example, an application for certification must be decided
within a 60-day delay after filing. However, these delays
are only guidelines.
Transitional provisions ensure that proceedings pending
before the former Office of the Labour Commissioner General
shall be taken up and continued before the LRC, without
continuance of suit. Proceedings pending before the Labour
Tribunal will be continued before the same court pursuant
to the previous Labour Code stipulations. However,
only the decisions rendered before the reform’s effective
date remain subject to an appeal before the Labour Tribunal.
b. Substantive Modifications:
As to substantive modifications, it should be noted, firstly,
that the concept of “statute of employee” remains
unchanged. Modifications made to the certification procedures
slightly change some of the parties’ respective duties
as, for example, providing all document or information
required by regulation when filing an application for certification.
Moreover, the employer must now post a copy of the application
for certification itself and not only a list of the employees
concerned.
However, the addition of section 28d.1) of The Labour
Code substantially modifies the certification
process: It allows the issuance of a certification,
even in case of contestation by the employer of the
proposed certification unit, if said contestation does
not alter the association’s representative nature.
This modification will certainly provoke some disputes,
because it disregards, among other things, various
alternate solutions and subsidiary proposals that the
employer could eventually make regarding the appropriate
unit. A development to follow.
Section 45 of The Labour Code, which provides
for transmission of certification in case of operation
by another or alienation, now applies to judicial sales,
whereas before it did not. This is a desirable modification
that did not catch anyone unaware. Besides, the employer
is now legally required by the new section 45.1 of the Labour
Code to give notice to the concerned association of
his intention to alienate or transfer the operation of
all or any part of his undertaking. Transfer of operation
will not be forbidden in case of omission, but the reaction
time granted to the union will be extended.
The new section 45.2 establishes new rules applicable
to successorship, which substantially change the prior
existing situation. Firstly, the collective agreement will
bind the new employer for a maximum 12-month period only.
Therefore, the challenge period of union allegiance is
adjusted consequently. Moreover, section 45.2, paragraph
2, enables the parties to negotiate an agreement establishing
conditions according to which a partial operation by another
can be exempted from the application of section 45. This
section is therefore not of public order anymore.
As regards settlement of disputes ensuing from transmission
of certification, the new section 46 of the Labour Code now
grants broad powers to the commissioner apprised of a motion
seeking to solve such disputes. The LRC is now generally
entitled to act in such a manner as it may consider most
convenient, which is very broad, to solve difficulties
in applying transmission of certification.
The last element of The Labour Code’s substantive
modifications that hold our attention is the reform of
the negotiation process of a collective agreement introduced
by section 58.2 of the Labour Code, which entitles the
employer to submit his last offers to secret ballot vote
among the employees. This vote can only aim at accepting
or refusing these last offers, which must necessarily concern
all questions that are under dispute between the parties.
Such ballot can be ordered by the LRC only once, but section
58.2 is unfortunately silent as to legal binding of a vote
of acceptance by the employer’s offers. Several questions
remain unsolved as regards this mechanism, which will be
tested in the years to come.
In conclusion, while reminding that this summary is only
a superficial approach of the multiple modifications brought
to the Labour Code, we can highlight that many critics
of the labour relations scene in Quebec feel that the Government
did not entirely assume its responsibilities to protect
the weakest party that is the worker, especially in a time
when the traditional concept of employee is sub-stantially
losing its meaning.
The New Quebec Labour Relations Commission Chairman
Lecture
Justice Louis Morin, Chairman of the Labour Relations
Commission, expressed some enlightening comments pertaining
to the set up and taking office of the new Commission that
he chairs, during a lecture delivered on September 25,
2002. He emphasized, on numerous occasions, the major impact
of the Government’s refusal to grant an appropriate
budget on the LRC’s credibility and efficiency. Actually,
the Commission’s accrued powers and new competences
would need, in Justice Morin’s opinion, additional
resources, refused up to this day.
The new commissioners’ assignment at the LRC will
take place throughout the fall. Besides, the process is
already under way: Most of the senior commissioners’ office
has been confirmed. However, as outlined by Justice Morin,
more commissioners will be required, which is not yet to
become a reality. He doubts that the new commissioners
will be able to take seat before summer 2003, referring
to the case of the Commission des lésions professionnelles,
where it took 18 months before the new commissioners officially
took office.
Beyond budgetary restrictions affecting
LRC’s human resources, Justice Morin also mentioned
the material restrictions that this situation could impose.
Nevertheless, in the interests of transparency, he undertook
to have all LRC’s decisions accessible at low cost
on the organism’s web site.
As to the LRC’s operating rules, it has been outlined
that little or no recess during the hearing will be granted
to the parties. However, investigation reports prepared
by labour relations officers will be more readily available
and an efficient arbitration system before a decision is
rendered will be put in place. Moreover, it is not of the
LRC’s intention to make a clean sweep of the existing
jurisprudence, but rather to focus on its new competences.
As to rules of proof and procedure, Justice Morin specified
that the delays for hearing after filing an application
are going to be shorter, for a range of 30 to 90 days.
The LRC will then require the parties to identify precisely
the key issues, number of witnesses and claims and submit
their documents rapidly after filing of the application.
The parties will automatically be summoned to a pre-hearing
conference if the case requires a third day of hearing.
Postponements will automatically be refused if no closer
hearing date is available or if not within the delays provided
for by the Code in the rules of procedure. This points
to a vigorous debate in view of the application of the audi
alteram partem rule.
Finally, Justice Morin outlined that, from now on, peremption
of applications will be applied and, thus, every file inactive
for more than a year will be closed after notice to parties
by the LRC to that effect.
Time ONLY will let us know if these modifications, announced
in a context of austerity measures, will allow a more efficient
management of administrative justice that will nevertheless
respect the rights of the parties.
2. Court of Appeal Decisions
a. Employment ties are not permanently
severed when dismissal is contested in a grievance:
In the Pavillon du Parc v. Ferland decision, the
Quebec Court of Appeal created a fiction of law whereby
a certain type of employment tie is upheld after discharge
of an employee because of the filing of a grievance contesting
his severance.
In this matter, the employee, discharged in June 1996
for having expressed untruthful, alarmist and defamatory
remarks towards his employer, reiterated his behaviour
during a press conference in December 1996, a few days
before hearing of the grievance contesting his discharge.
The employer also tried, during this first hearing, to
adduce proof of these subsequent facts, but that was refused
by the arbitrator.
The employer then decided to discharge the employee once
again at the end of December 1996 because of the remarks
recently expressed during the press conference. This second
discharge was also subject to grievance.
Once again, in May 1998, the employee expressed unacceptable,
untruthful and defamatory remarks towards his ex-employer
during a Régie régionale de la santé Board
of Directors’ session. The employer, faced with this
behaviour, discharged him for a third time, which discharge
was subject to a third grievance.
Apprised of the first discharge, the arbitrator upheld
the grievance in part by cancelling the dismissal and substituting
therefore a three-month suspension without pay. He allowed
the two other grievances on the basis that the employer
could not discharge an employee who had already been discharged.
For him, the employee could not be discharged a second
and third time because, at the time of the first discharge,
the employer permanently and unilaterally terminated the
contract of employment concluded with the employee. This
tie being severed, he was legally prohibited from discharging
this employee once again. The employer then had no other
choice than to file suit before civil courts for a tort
remedy against his ex-employee.
On judicial review, the Superior Court concluded that
the first decision cancelling the discharge was not patently
unreasonable. As for the decisions regarding the two other
grievances contesting the subsequent discharges, the Court
applied the correctness standard of review, because of
the arbitrator’s refusal to exercise his jurisdiction.
The Superior Court judge then looked to see when a discharge
becomes permanent. Is it at the time of the employer’s
decision, or when all the avenues of appeal of this decision
are exhausted?
The Superior Court judge concluded that the right to appeal
an employer’s decision to discharge an employee suspends
the effects of discharge, which will benefit from the finality
of the decision, as defined by the authors, only at the
end of the process. The employee is legally required to
respect his duty of loyalty to the employer when a grievance
requesting his reinstatement is filed, and the collective
agreement continues to apply to the parties “to the
greatest extent possible”. Otherwise, the employer
would have been unable to take any disciplinary action
against the employee, since he could not prove the subsequent
facts at the first grievance, and proof of the alleged
facts was not allowed at the subsequent grievances, since
the employee had already been discharged.
The Court of Appeal, in its decision written by Justice
Rothman, decided that the Superior Court judge’s decision
was fully appropriate. In the Court’s opinion, the
first discharge was suspended by the filing of the grievance
requesting the employee’s reinstatement. Thus, if
subsequent acts justified a discharge or disciplinary actions,
the employer could take all appropriate measures in order
to punish this behaviour subsequent to the first discharge.
Therefore, the arbitrator should have addressed these acts
and decided if the disciplinary action taken was justified.
Pavillon du Parc inc. v. Ferland, C.A. Montreal, 500-09-008653-990,
500-09-010347-014, 500-09-008742-991 and 500-09-006084-982,
decision written by Justice Rothman on October29, 2001.
Attorney for Union: Mtre. Édouard Kravitz, Sauvé & Roy
(CSN)
b. The human rights tribunal cannot
hear a litigation that is within the exclusive jurisdiction
of the grievance arbitrator:
Now, in the P.G. Québec v. Commission des droits
de la personne matter, for which an application for
leave to appeal has been filed with the Supreme Court,
the Quebec Court of Appeal raised a great deal of debate
concerning the concurrent jurisdiction between the grievance
arbitrators and the Quebec Human Rights Tribunal.
In a majority decision, the Court of Appeal allowed a
motion for dismissal on the grounds that the Tribunal had
no jurisdiction to hear the case as submitted by the Human
Rights Commission in its notice of application. At first,
the Human Rights Tribunal dismissed this motion, considering
that the issue before him did not arise from the enforcement
or interpretation of the collective agreement, but rather
from the negotiation of said agreement and from a violation
of the equality rights protected by the Quebec Charter.
In this particular case, the employer and the concerned
unions negotiated the terms of a national agreement, which
was agreed and then ratified by the appropriate authorities
to form the new collective agreement applicable between
a school board and its employees. Among other things, the
outcome of this agreement was to ignore the year 1996-1997
for the wage progression of teachers, in order to allow
the State to recover important amounts of money.
Following a complaint, the Quebec Human Rights and Youth
Protection Commission concluded that this measure violated
the young teachers’ equality rights, because of their
age, and thus infringed articles 10, 13 and 16 of The
Charter. Considering that the complainants’ wage
claims were based on the interpretation and application
of the collective agreement, the concerned employer and
unions argued that the Human Rights Tribunal could not
have jurisdiction to hear the case, which consequently
came under the grievance arbitrator’s exclusive jurisdiction.
The Human Rights Tribunal decided that the essential nature
of the dispute did not flow from the collective agreement,
but was based on the necessity to put a stop to the violation
of a right recognized by The Charter. It
dismissed the motions for dismissal, acknowledging therefore
its jurisdiction.
The Court of Appeal, in a very precise majority decision,
quashed this decision, being of the opinion that the debate
should have taken place on the bargaining of agreement’s
level, since the discrimination ensued from the application
of a collective agreement stipulation. Consequently, taking
into consideration The Labour Code stipulations
and the grievance arbitrator’s broad powers, Justice
Rousseau-Houle decided that the arbitrator’s exclusive
jurisdiction over this debate could not be denied. She
was of the opinion that the crux of the dispute dealt with
salary and consideration given to the experience, and that
these questions were the foundation of the
collective agreement and expressly within the scope of
the agreement. Thus, the debate, although raising questions
related to The Charter, was still an element
of labour dispute entirely within the mandate of the arbitrator,
which excluded the Human Rights Tribunal’s concurrent
competence. Only an expressed exclusion provided for by
the legislator could have changed this situation. However,
such legislative distinctions do not exist in Quebec law.
Even if the extent of the arbitration award’s effect
is different from the extent of a decision from the Human
Rights Tribunal - the local parties being the only persons
to be bound by an arbitration award, while a case before
the Human Rights Tribunal involving national parties would
have a broader impact – it is accepted practice that
standard cases be conducted in order to resolve a question
of national concern. In view of this, Justice Rousseau-Houle
concluded that the Commission could not appeal before the
Human Rights Tribunal, and granted the motion for dismissal.
Justice Baudouin, in short reasons, concurred with Justice
Rousseau-Houle’s opinion, adding however that it seemed
strange to him that the legislator, having taken great
pains to create an independent, specialized tribunal for
human rights, did not see fit to clearly confer exclusive
jurisdiction upon it. In his opinion, the arbitrator’s
power over discrimination does not seem to be the best
way of preserving protection of human individual rights
but, given the state of the jurisprudence, he can only
concur with the reasons expressed by Justice Rousseau-Houle.
Dissenting, Justice Robert was of the opinion that, by
creating two specialized tribunals, the legislator has
provided no exceptions to exclude employees covered by
a collective agreement from the Human Rights Tribunal jurisdiction.
What was the legislator’s intention when it created
these two regimes with concurrent competence? He looked
to see if, considering the essential nature of the case,
this fact situation was included in the collective agreement.
For him, the crux of the dispute was not based on unpaid
wages or remuneration, but on the creation of a disadvantageous
treatment for young teachers, which was what lead them
to file a complaint. It is a labour conditions discrimination
that does not exclude the fact that the basis of jurisdiction
can be found outside the collective agreement. To conclude
that the dispute must be interpreted by using the collective
agreement is equivalent to allow the parties to agree on
a stipulation that violates the rights protected by The
Charter, which is strictly prohibited. Thus, he
concluded that the essential nature of the dispute did
not fall within the agreement, but within the bargaining
that resulted into the agreement.
Considering that The Charter provides a
complete remedy to individual victims of discrimination
and that, moreover, the grievance arbitrator can grant
such remedy only if he is entitled to make the order sought,
Justice Robert concluded that the arbitrator’s jurisdiction
does not exclude the Human Rights Tribunal’s, and
he would have dismissed the motions for dismissal.
The Supreme Court’s decision regarding the leave
for appeal filed by the Human Rights Commission is expected
within the next weeks.
P. G. du Québec v. Commission des droits de la personne
et des droits de la jeunesse, [2002] R.J.D.T. 55, J.E.
2002-491 (C.A.)
Attorneys for CSQ: Mtre. Pierre Brun,
pbrun@grondinpourdrier.com; Mtre. Robert P. Gagnon, rpgagnon@grondinpoudrier.com
c. The choice of an employee as to
how to compensate for a handicap cannot be blamed to
be a personal decision:
In the Corbeil case dealing with the concept of “handicap”,
the Court of Appeal was confronted with a Superior Court
decision pronounced in judicial review of an arbitration
award dismissing a grievance.
The grievance filed by the union involved the employer’s
refusal to indemnify an employee for days of absenteeism
resulting from laser surgery in order to correct a myopia
and astigmatism problem. The arbitrator denied the grievance,
stating that the employee, who chose surgery, failed to
minimize her damages in failing to get glasses. Thus, since
the employee chose surgery instead of glasses, the employer
had just cause to refuse to pay her sick leave. The arbitrator
considered that the employer did not have to bear the consequences
of the employee’s purely personal choices.
The Superior Court, considering a motion for judicial
review filed by the union, decided that, in the absence
of a manifestly unreasonable error, its intervention was
not warranted.
The Court of Appeal, on its part, granted the union’s
appeal and returned the file to the arbitrator for the
following reasons:
First, the Court blamed the arbitrator for having given
a too restrictive interpretation to the definition of the
word “sickness” mentioned in the collective agreement.
The arbitrator considered that, since the “sickness” from
which the employee suffered was attributable to her personal
and voluntary decision to have surgery, the employer could
not be forced to pay for the consequences of such decision.
However, the collective agreement contained no such restrictions
that could have allowed the employer to refuse to pay days
of absenteeism depending on the cause of sickness. Therefore,
the arbitrator added a condition to the agreement.
The only requirement set out in the agreement to benefit
from sick leaves was to be sick and provide a health certificate
to that effect. The term “sickness” not being
defined, it was proper to refer to the dictionary’s
general definition.
The arbitrator exceeded his jurisdiction when he decided
to deny the employee reimbursement of her sick leaves on
the basis that these leaves were the consequence of a personal
decision.
Syndicat des employés de techniques professionnelles
et de bureau d’Hydro-Québec, section locale 2000
(SCFP-FTQ) v. Hydro-Québec and Gilles Corbeil, [2002]
R.J.Q. 351 (C.A.)
Attorney for union: Mtre. Richard Bertrand.
3. Decision of the Pay Equity Commission:
The commission looks at the concept of act of bad faith
made by an employer:
The Commission has just made an interesting ruling with
regard to complaints filed by employees, where they argued
that their employer acted in bad faith by providing a sub-contractor
assessment of its restaurant operations to avoid paying
the compensation adjustments that were to be determined
following the exercise of pay equity.
According to complainants, when the Station de ski Mont
Sainte-Anne Inc.’s representatives took cognizance
of the extent of the costs related to this exercise, the
enterprise decided to proceed with the outsourcing of its
restaurant services. For the complainants, contracting-out
the restaurant services in such context was, in itself,
an act of bad faith. Thus, the main debate related to this
concept of bad faith in the context of an action made without
secret by the employer and justified by economical reasons.
This was a first in pay equity in Quebec.
In this particular case, in the summer of 1996, at the
time of beginning the pay equity process, the employer,
Station Mont Sainte-Anne Inc., first refused to include
its restaurant in the process. However, in the fall of
the same year, it finally accepted to include it. Five
years later, in the summer of 2001, the employer’s
chief executive officer indicated to the members of the
Pay Equity Committee that, if the exercise going on at
that moment reached an impasse, he would have to outsource
the restaurant. This was done one month later.
The employees’ complaint was filed according to section
15 of The Pay Equity Act, which prohibits
the employer to act in bad faith and in an arbitrary or
discriminatory manner when establishing a pay equity
program. The issue was whether the outsourcing of a service by an employer,
in an open manner because of a
precarious situation generated by the pay equity process, would be an act of
bad faith to be penalized in accordance with this section. The Pay Equity Commission
concluded that it could not realistically say that the law requires the employer
not to modify its company, or part of it, before, during and after the pay
equity exercise. The law does not, in itself, prohibit the abolition of job
categories or recourse to outsourcing. However, the employer is still required
to act according to a certain standard of behaviour in the exercise of its
rights and prerogatives. Besides, good faith is a first principle of all contractual
relations in the Quebec civil law.
It is the close conjunction between The Pay
Equity Act and the Quebec Charter of
Human Rights and Freedom that led the Commission
to conclude that The Pay Equity Act requires
a large and liberal interpretation, and is goal-oriented.
In that context, the purpose of section 15 of The
Pay Equity Act is to protect a company’s
employees in the face of the autonomy and responsibilities
granted respectively to the employer, the bargaining
agent and the pay equity committee.
Thus, the Commission decided that bad faith, which must
also be interpreted in light of section 7 of The
Civil Code of Quebec, might be implied by an excessive
or unreasonable gesture made in relation with The
Pay Equity Act. Consequently, even if the outsourcing
of the restaurant, following budget constraints related
to the pay equity process, was made quite transparently,
which was not enough to demonstrate Station Mont Sainte-Anne
Inc.’s bad faith towards employees, the members of
the Commission decided that these same facts demonstrated
the excessive and unreasonable nature of the outsourcing
in these circumstances.
The Commission found no support in the economical arguments
to justify outsourcing because, on the one hand, discrepancies
were still theoretical at the time of outsourcing – the
Pay Equity Committee not having rendered a final decision
in this respect – and, on the other hand, because
the parties had not seen fit to formally submit the dispute
as to compensation adjustments before concluding that it
was too expensive, and to request an extension of the compensation
adjustments period, as legally permitted, in order to curb
the costs. In these circumstances, recourse to outsourcing
appeared to be premature, excessive and unreasonable.
The Commission finally decided to suspend the outsourcing
agreement reached between Station Mont Sainte-Anne Inc.
and Le Groupe Compass Québec until the date provided
for by the law for implementing the pay equity exercise’s
results. This implies that the process will have to be
completed in accordance with the employer’s parameters
as they existed before the outsourcing, Groupe Compass
then becoming related by the same exercise.
Station Mont Sainte-Anne inc. and Le groupe Compass Québec,
Pay Equity Commission; President: Ms. R. Côté,
files 400-00249, 00250 and 00358 to 00455, decision rendered
on October 21, 2002.
Attorney for union: Mtre. Denis Bradet, dbradet@grondinpoudrier.com
4. Arbitration Award:
Fibromyalgia: problems of definition of disability,
of arrangement and safeguard order:
This case has raised interesting questions relating to
the definition of disability and of arrangement, and to
the powers of arbitrators to pronounce safeguard orders.
The factual background to this matter may be summarized
as follows: The claimant, Ms. Shiller, suffered from
a chronic fatigue and fibromyalgia syndromes, which forced
her to a lose of time as of August 23, 1999. The employer,
acknowledging Ms. Shiller’s condition, paid her wage
loss insurance benefits, in accordance with the collective
agreement. On the recommendation of her attending physician,
Ms. Shiller gradually returned to work three hours per
week, as of May 15, 2000. In August 2000, the employer
informed Ms. Shiller of his decision to impose a gradual
return to work resulting, as from September 2000, in a
return to full-time duty.
A grievance was filed in September 2000 for Ms. Shiller
to contest the imposed gradual return to work scheduling
and the resulting reduction, then cessation of wage loss
insurance benefits.
The union filed a motion prior to the hearing on the merits
in order to obtain a safeguard interlocutory order. In
this motion, the arbitrator was asked to suspend the application
of the gradual return scheduling imposed by the employer
on August 3, 2000, and to order the employer to reimburse
the complainant for the wage loss insurance benefits to
which she would have been entitled had a gradual return
to work scheduling not been imposed by the employer. On
the hearing of this interlocutory motion, the arbitrator
granted the safeguard order for all the above-mentioned
items.
The issue that was addressed by the arbitrator at the
hearing on the merits was the validity of the re-entry
plan established by the employer. More precisely, the arbitrator
had to determine if the employer was right to believe that
the complainant could tolerate an accelerated work schedule
in comparison with the schedule suggested by her attending
physician, and if he was entitled to withhold the wage
loss insurance benefits payable to complainant.
After a careful analysis of the expert evidence sub-mitted
by the union and the employer, and after having considered
the particularities of the pathologies suffered by complainant,
that is to say chronic fatigue and fibro-myalgia syndromes,
the related reserved prognosis and the layman evidence
submitted by, among others, the complainant, the arbitrator
concluded that a congruence of elements suggested that
is would have been preferable to favour a slower return
to work to prevent a risk for relapse, which would be in
fact counterproductive.
At the end of his analysis, the arbitrator concluded that
the employer had no justification for requiring that the
complainant recommence employment on an imposed schedule
without taking into consideration the attending physician’s
recommendations. The arbitrator ordered, and confirmed
the right to retroactive reimbursement of the wage loss
insurance benefits withhold by the employer following the
application of the gradual re-entry schedule.
Centrale des professionnelles et professionnels de la
santé – Association des employé(e)s en service
social de la province de Québec and C.L.S.C. René-Cassin,
grievance of Ms. Joanne Shiller, S.A. 2000-09-79, Mtre.
Jean-Guy Ménard, arbitrator
Attorney for union: Mtre. Michel Gilbert, mgilbert@grondinpoudrier.com
5. Evolution of Minimum Wage
Minimum wage raises under the Act Respecting
Labour Standards, L.R.Q., N-1.1:
The following is how the base minimum wage has developed
during the last months: On February 1, 2001, the base minimum
wage provided for in section 3 of the Regulation rose
to $7.00 from $6.90 per hour. On October 1, 2002, it has
been increased to $7.20 per hour. Starting February 1,
2003, it will again be raised by $0.10 to $7.30 per hour
(Regulation Respecting Labour Standards, R.S.Q.
c. N-1.1 r.3, D.959-2002, section 3).
FEDERAL
Who is the employer for the purposes of the Canada
Labour Code: the agency which re-fers drivers
to a trucking company or the company to which the drivers
are assigned?
The Canada Industrial Relations Board confirmed longstanding
labour relations board jurisprudence and ruled that a trucking
company, which used temporary agencies to supply drivers,
was the real employer of these agency drivers for the purposes
of the Canada Labour Code.
The Board determined that with this kind of “tripartite
employment relationship”, involving an agency, a trucking
company and drivers assigned to work at the company, the
essential question to ask is, “Who has the fundamental
control and direction over the employees?”.
In answering this question, the Board relied on City
of Pointe Claire [1997] 1 S.C.R. 1015, in which the
Supreme Court of Canada held that when dealing with non-traditional
employment relationships, such as those involving temporary
agencies, day to day control is only one factor to be
considered. A comprehensive and flexible approach must
be adopted in order to determine which party has the
most control over all aspects of work, having
regard to the specific facts of each case.
In arriving at its decision, the Board applied the factors
outlined by the Canada Labour Relations Board in
Nationair (1987), 70 di 44, and 19 CLRBR (NS) 81
(CLRB No. 630) with some modifications and additions:
Payment of wages and benefits – Who ultimately bears
the cost of paying wages?
Access to employment – Who has fundamental control
over which agency drivers are retained and over their work
while they are employed?
Establishment of working conditions – Who determines
wages, working hours, vacations, holidays and other benefits?
Performance and control of work – Who assigns the
work and determines the standards of performance of the
work?
(The Board found that significant considerations under
this factor were i) who had direct control over the work
performed and, ii) who owned the equipment used by the
employees when they were performing their work)
“Other criteria” (including: the employee’s
identification with the company, the degree of integration
into the company, and the temporary or permanent nature
of their employment)
The Board justified its broad approach by citing one of
the primary purposes of the Code, which is
to facilitate access to collective bargaining. It reasoned
that for collective bargaining to be meaningful, it must
be carried on with an employer who has authority and knowledge
of activities of employees in the bargaining unit. This
was particularly true in the context of the certification
application which was being considered in this instance.
If the temporary agencies had been found to be the real
employer of the agency drivers, it would have been almost
impossible for the Union to have carried on an effective
organizing campaign, since the “employees” of
the agencies did not work in one location, but were spread
across the trucking industry.
Having regard to each of the five factors set out above,
the Board ruled that the employer exercising fundamental
control with respect to the agency drivers was Mackie.
Teamsters Local Union 938 and Mackie Moving Systems Corporation,
(January 23, 2002), CIRB/CCRI Decision No. 156
Motions Briefs
Alberta
The Banff Springs Hotel was the site of the first Canadian
UFCW Legal Counsel conference in May, which coincidentally
involved some members of CALL. A freak storm prevented
people from Edmonton from getting there, but most of the
out-of-province delegates made it. We understand plans
to hold a second conference in June 2003 in Quebec City
are underway.
British Columbia
Michelle Blendell left Victory Square Law Office in
March, moving over to Black, Gropper & Company. Tracey
Wood at the Union of B.C. Performers has joined
CALL.
Manitoba
Robb Tonn, former Manitoba CALL V.P. has left Myers
Weinberg Kussin Weinstein Pollack. His office is
now located in the main office of the Manitoba Government
and General Employees Union in Winnipeg. He is now practicing
as Robb Tonn Law Corp. After articling at Myers and
practicing labour law briefly with the firm, Shannon
Hanlin has moved to Legal Aid. Jennifer Craig has
joined the Labour Department at Myers.
Janet Jardine has left Deeley, Fabri, Sellen in
Winnipeg, and has moved to British Columbia where apparently
she is practicing (shudder) insurance law.
Two Manitoba labour arbitrators were recently appointed
to the Bench. Colleen Suche, Q.C. is now sitting
on The Court of Queen’s Bench, and Martin Freedman,
Q.C. has been appointed to The Court of Appeal. Two
other arbitrators, Arne Peltz and William Hamilton will
soon be sitting as part time vice-chairs at the Manitoba
Labour Board. (See the Manitoba Report for more on these
appointments.)
A Manitoba Union President has been named a Lay Bencher
of The Law Society of Manitoba. Paul Moist of CUPE was
appointed in the Spring of 2002.
Ontario
Last issue we reported that Cindy Watson and Eric
de Junco had set up Watson del Junco, joined by Lisa
Triano. We’ve now heard that Joanne McMahon,
joined by Sylvia David, Carol Deacon and Martin
Smith are also at the firm, and Eric Del Junco has
left the firm. Rumors at press time had the new firm
called Watson McMahon.
Shaheen Hirani has left the University of Toronto
Faculty Association and is working for the United
Steelworkers of America in Toronto.
Quebec
We hear that Martine Sauve of Trudel Nadeau in
Montreal is travelling out of the country for a while.
Saskatchewan:
Angela Zborosky has moved to Silversides Kovatch
Zborosky Beauchemin in Regina, from Woloshyn & Company.
Foot Notes
Thanks again to Aida Holmes at the Victory Square Law
Office for her assistance in compiling this column.
This is your column. For future editions, please send
all your “Gossip” to Anne Gregory at UFCW 832
in Winnipeg: anne.gregory@UFCW832.com or call (204) 786-5055.
We are looking for information about professional moves,
awards, appointments. If you would like to us about a personal
event in your own life (like marriage or birth of a child)
we’ll take those submissions as well. Thanks!
Building Bridges
Kyoto can be met without sacrificing Canadian workers
by Dale Marshall
Even though the national debate over ratifying the Kyoto
Protocol is now over, the stage is set for the next one:
how to implement Kyoto. With all the talk of job losses,
it is surprising that very little has been said about how
to mitigate employment impacts. This has to change.
Premier Klein, his cabinet, and several industry associations
have been leading the charge against ratifying the Kyoto
Protocol. Arguably their most successful tactic is to scare
Canadians about massive job losses if Kyoto is implemented.
However, it is clear from other actions that Premier Klein
and industry spokespeople are not strong advocates for
workers, and this situation is no different.
In fact, organized labour has overwhelmingly supported
Kyoto ratification. The largest energy union in Canada,
the Communications, Energy and Paperworkers union, endorsed
an energy policy that included Kyoto implementation. Other
unions, including the large and influential CAW, have also
endorsed Kyoto. Union centrals across Canada, including
the Canadian Labour Congress, and the Alberta and BC Federations
of Labour have followed suit.
The reason for their support is that they know that job
loss allegations made by Kyoto’s detractors are unfounded.
Research shows that though some energy workers could lose
their jobs in the short term, these losses will be offset
by the creation of new jobs in emerging industries in the
energy sector and others.
The Canadian Manufacturers and Exporters (CME) has stated
that 450,000 jobs will be lost because of Kyoto, a figure
cited everywhere by anti-Kyoto lobbyists. What the CME
does not tell us is that over the same time period, 1.8
million jobs—four times as many—will be created.
The more recent figure of 244,000 job losses also doesn’t
consider the other side of the equation: 1.3 million job
gains.
Overall, even under Kyoto, there would be a net increase
in jobs in the Canadian energy sector. A 1997 study commissioned
by Environment Canada showed that investing in renewable
energy creates 60% more jobs that the same investment in
conventional energy production. The same investment in
energy efficiency creates five times more jobs.
So, post-Kyoto, even the Canadian energy sector will have
more jobs created than lost. The problem, however, is that
workers who lose their jobs won’t necessarily be the
same people who fill newly created jobs. As it is clearly
unacceptable to have these workers bear the brunt of climate
change action, it is necessary to implement a strategy
that allows Canada to meet its Kyoto Protocol commitments
while providing transition support and employment for those
who may lose their jobs.
Just Transition acknowledges that when society is facing
an imperative to change how it does things, workers should
not be left holding the bag. A comprehensive transition
plan would have two components. The first involves retraining
and educational opportunities for displaced energy workers;
income assistance so workers can take part in these programs;
and relocation funds for those who have to move to find
employment. For the estimated 13,000 Canadian energy workers
who will be displaced, this component would cost approximately
$1 billion over ten years—a small price to pay relative
to current annual federal surpluses.
The second part of this transition strategy focuses on
encouraging investment and job creation in emerging
energy industries. According to a federal government study,
simply implementing policies to reach Kyoto will create
additional business and investment opportunities in Canada
of at least $90 billion over ten years. From investment
opportunities come employment opportunities.
But Canada should also engage in active industrial policy
to shift our economy away from fossil fuels and cultivate
homegrown sustainable energy industries. The federal government
could establish energy efficiency funds (modelled on the
Toronto Atmospheric Fund), shift subsidies from conventional
energy to renewable electricity production, and fund public
transit.
There are tremendous economic opportunities in becoming
more energy efficient and developing new technologies in
alternative fuels, fuel-efficient vehicles, and in wind,
geothermal, solar, and tidal power. Over the next decade,
global demand for these renewable forms of electricity
is expected to continue the double-digit growth it experienced
every year of the 1990s (there are over 12,000 jobs in
the Danish wind industry).
Making industries, residences, and businesses more energy
efficient will only make the Canadian economy stronger.
Some companies have already shown that meeting Kyoto can
benefit their bottom line. British Petroleum, one of the
world’s largest energy corporations, reduced its greenhouse
gas emissions to 10% below 1990 levels. Even more remarkable,
they did it eight years ahead of schedule and at no net
cost. Energy efficiency investments were recouped through
savings on energy bills. The federal government can encourage
this kind of creative action by giving tax credits to Canadian
companies that purchase highly energy efficient machinery.
The federal government could pay for all these smart investments—transitional
funds for workers, incentives for sustainable businesses,
investments in transit, etc.—out of the income raised
by auctioning off tradable emission permits that would
be used in a domestic emissions trading program. In other
words, a Just Transition strategy could be entirely revenue
neutral.
Let us not forget that doing nothing about climate change
also carries costs, in the form of increased air pollution
and other public health impacts; destruction of natural
resources and ecosystems that our economy—not to mention
our survival—depends upon; and more extreme weather
events such as hurricanes, floods, droughts, and storms.
It is clear that climate change can be addressed, and
so can the unintended consequences of changing and restructuring
the Canadian economy. Environment Minister David Anderson
has publicly supported a transition strategy for displaced
Canadian workers. Poll after poll has shown that the vast
majority of Canadians believe that Canada must act upon
the commitments it made to adopt and implement the Kyoto
Protocol.
All that remains is for the Prime Minister and his government
to exercise the necessary leadership and implement the
solutions already at hand.
Dale Marshall is a researcher with the BC office of the
Canadian Centre for Policy Alternatives and author of the
report, Making Kyoto Work: A Transition Strategy for Canadian
Energy Workers, available at www.policyalternatives.ca.
Kyoto and Green Jobs
by Jennifer Penney
Ralph Klein and his friends in corporate Canada have been
using an old tactic to turn Canadian workers against the
signing and implementation of the Kyoto Accord – job
blackmail. In February, the Alberta government, seconded
by Canadian Manufacturers and Exporters organization, predicted
a loss of 450,000 jobs if Kyoto is ratified. A little later,
the Canadian Chamber of Commerce warned that signing implementing
Kyoto would produce a loss of 200,000 jobs, and a $30 billion
cost to the Canadian economy, a position endorsed by the
Canadian Association of Petroleum Producers.
Jim Stanford, an economist with the CAW, calls this the “economics
of hot air.” The figures were first produced for a
worst case scenario in which Canada implemented Kyoto alone.
Since more than 50 countries – including most of Europe – have
signed the Accord, that is clearly not going to happen.
Moreover, the figures never represented losses of existing
jobs but projected decreases in the creation of new jobs.
It’s no big surprise to see such figures being cranked
out and misused, however. Job blackmail is a tactic that
usually works well for big business and its political allies.
Workers and unions have come up against it again and again
when pressing for better labour legislation, occupational
health and safety protection, and environmental safeguards.
The surprising thing is that job blackmail hasn’t
worked so well in the Kyoto debate so far. Most polls show
that public support for ratifying Kyoto has wavered very
little despite the doomsday warnings. A COMPAS poll undertaken
in July for the Financial Post showed that 57% of business
executives agreed that greenhouse emissions could be drastically
cut with little economic impact. And unlike many of their
American counterparts, Canadian unions have not joined
the forces arrayed against signing Kyoto. On the contrary
CEP, CAW, CUPE, NUPGE, the CLC and the Toronto and York
Region Labour Council have all supported ratification.
Why is this? There are many reasons, but an important
one is that, while Kyoto could mean job loss for some union
members, an even larger number of new green jobs will be
created by tackling climate change.
In the construction sector, for example, Kyoto could be
a real boon. The Better Buildings Partnership, created
with the participation of the Buildings Trades Council,
has supported these kinds of retrofits for 8 years in Toronto.
The
program promotes energy conservation retrofits in all
types of buildings in the city, bringing together energy
service organizations who retrofit buildings in return
for a portion of the savings. The BBP has led to retrofits
of more than 150 buildings in Toronto, reduced building
operating costs by $6 million and reducing 72,000 tonnes
of CO2 emissions annually. Oh, and it has created an estimated
3000 construction jobs. More jobs have been created in
the industries supplying the retrofit work, in the manufacture
of energy efficient windows and insulation materials for
example. Expanded nationally, this program cold be a major
job creator, as well making a substantial dent in Canada’s
greenhouse gas emissions.
Energy unions could increase their numbers with a shift
to more renewable energy. Renewable energy from wind power,
solar power, small hydro, and landfill gases, has higher
labour intensity and lower capital intensity than non-renewable
energy. This means that for comparable amounts of energy,
more money is spent on workers and less on machines. Wind
energy is booming worldwide though Kyoto has not yet gone
into effect. Denmark, a leader in wind energy for the last
two decades, has quadrupled its production of wind turbines
in the last four years alone. More than 15,000 workers
are employed in the wind sector in Denmark, with a population
of only 5 million people. Jobs in renewable energy are
created in equipment manufacture, construction, operations
and maintenance. Unions in Denmark, Germany, Great Britain,
Spain and Australia have all analysed and promoted the
potential for job gains from renewable energy. German unions
calculated that Germany could create an additional 58,000
permanent jobs in the energy sector just by doubling the
share of renewable energy in the economy, although they
also predicted that 13,000 jobs would be lost in conventional
energy sectors, including coal mining. Expanding the use
of photovoltaics could create 14,000 jobs in manufacturing,
distribution, installation and maintenance. The Electrical
Trades Union and Australian Manufacturing Workers Union
have backed efforts to bring turbine manufacturing and
wind farms to a depressed coal mining region in Australia,
and create 2000 new jobs.
In the transportation sector, greenhouse gas reductions
will come from reduced car and truck traffic and increased
use of public and rail transport, cycling and walking.
In 1998, the British unions GMB and Unison worked with
Friends of the Earth UK on green job creation case studies.
They reported that a plan to reduce traffic and greenhouse
gas emissions by 10% by 2010 could create more than 100,000
new jobs in manufacture of buses, rolling stock, bicycles,
construction and upgrading rail infrastructure, building
bike paths, operations and maintenance of public transport,
etc.
That efforts to tackle climate change can create many
new jobs is not news. Investigations in the U.S., Germany,
Sweden, Norway, Australia and other countries, have identified
and counted jobs already generated by environmental initiatives,
including those linked to reducing greenhouse gases. By
1975, environmental laws and policies had already led to
the creation of more than a million jobs in the U.S. A
1987 study in Canada found 130,000 new jobs in environmental
work. German researchers counted a million environmentally
related jobs in that country in 1990. In 1994, world markets
for environmental goods and services were larger than those
for office equipment, aircraft and pharmaceuticals, and
almost as large as plastics. Last year, the Worldwatch
Institute estimated that there are more than 11 million
environmental jobs worldwide.
These jobs are not, in the main, terribly different from
the jobs which Canadian workers already do. Linemen will
be needed to maintain electrical lines from wind turbines,
just as they keep up electrical distribution from coal-fired
generating stations. Paving bicycle paths requires pretty
much the same skills and equipment as paving roads. Assembling
buses and rail cars is not much different from assembling
SUVs. A 1994 Australian study of new environmental jobs
showed that they ran the gamut from labourers and service
workers through machine operators, skilled trades and professionals.
Environmental initiatives can also sustain many existing
jobs that business-as-usual policies would wipe out. Farming,
fishing and forestry jobs are all threatened by climate
change and other environmental problems. Droughts this
year – attributed at least partly to climate change – promise
to wipe out yet more farms in western Canada. Lower water
levels in some of the remaining accessible salmon streams
in B.C. have reduced fish reproduction and increased the
pressure on fishing communities and jobs in that province.
Forest fires from hotter temperatures and dryer summers
have multiplied in the last decade, putting at risk many
jobs in forestry. A failure to tackle climate change will
lead to further disasters in these and other areas.
Job losses will occur in some sectors if we seriously
take up the challenge of reducing greenhouse gases and
mitigating climate change. Coal mines, tar sands operations,
oil- and coal-fired generating stations will all have to
be phased out. Automobile manufacturing and air travel
and fossil fuel use will have to be reduced. Most heavy
industry will have to change their production practices,
and some plants will undoubtedly shut down. The union movement
has begun the important work of promoting just transition
programs to ease the impact of job losses in these areas.
However, Canadian unions should go further. Like the CEP,
the unions should be investigating how greenhouse gas reductions
will impact on their sector, and what jobs – in any – might
be threatened. But they should go beyond the defensive
posture of just transition. Unions should prepare their
own proposals for mitigating climate change in the sectors
of the economy they represent, looking for the solutions
which will not only contribute to solving the environmental
problems, but maximize the creation of good new jobs at
the same time for their
existing and future members.
The Danish General Workers Union did this kind of work
in the mid-1990’s. They set achievable environmental
goals for several sectors which they represented – including
energy – developed plans for meeting the goals, showed
how the work could be financed, and demonstrated the range
of new jobs which could be created in the process. This
work inspired unions in several other European countries
to work with environmental organizations on their own green
job plans. This kind of intervention by Canadian unions
could introduce job creation objectives into climate change
programs and spell the end to job blackmail.
Jennifer Penney has worked 20 years for the union movement
on health and safety and environmental issues. She recently
completed a doctoral dissertation on green jobs.
Collected Wisdom
QUESTION:
You are attending a labour board hearing to be heard by
a three member panel. When you walk into the room you see
that one of the Board members is someone who your client
perceives will either be biased or there is a reasonable
apprehension of bias. You expect that the Board will not
automatically agree with you on this issue, in fact you
expect that to convince the Board you will have to make
a good argument, for which you are not at all prepared.
What do you do?
ANSWER:
We posed this question to two senior labour lawyers (Elizabeth
McIntyre, Cavalluzzo Hayes, Shilton, McIntyre & Cornish;
and David Brown, Brown McGillvray Stanley) for their ideas
and comments. They both advised basically the same approach
and we have consolidated their answer below.
The answer, which applies to both a Labour Relations Board
and an Arbitration Board is:
1. Approach the panel, after informing opposing counsel,
and advise them that an issue has just come up which you
have not yet had a chance to review with your client: ask
for a brief recess.
2. Do a quick review with the client to determine how
strongly they feel about their perception of bias and determine
the strength of their claim. If the bias claim is not strong
advise them of the risks of proceeding in front of a panel
who you have alleged is biased and who has rejected your
argument.
3. If there is a good basis to make an argument of bias
and/or the client directs you to proceed, advise the opposing
counsel that you intend to bring a preliminary bias motion.
You may try to seek agreement from the opposing counsel
about the bias issue or at least about your request for
an adjournment of the hearing to prepare your bias motion.
4. Ask to approach the panel, advise of the issue and
request an adjournment, either on consent, with the agreement
of opposing counsel or, if contested, on the basis that
the matter has just come to the attention of you and your
client and that, given that bias is a serious matter going
to jurisdiction, you need time to prepare. This could be
done with counsel only present to save embarrassment to
the panel and to give them a chance to step down if there
is a genuine issue which the panel agrees to without arguments
from you.
5. If the adjournment is declined you would want to have
that formalized in an open session with the panel your
request for an adjournment to prepare for the bias motion.
6. Argue to the best of your ability, either with or without
the adjournment. Failure to grant an adjournment could
be a natural justice violation which could be raised on
a reconsideration or a judicial review. If you do not raise
the bias issue in open hearing (no matter how unprepared
you are to argue it), you will not be able raise the bias
issue on judicial review.
7. If the application is dismissed, you can ask for a
adjournment to raise the issue in Court and to seek a stay
of proceedings until the application for Judicial Review
is granted. If that is declined, at the time or later,
you should do your best on the merits of the case,
without prejudice to your position that there is bias
in the panel. If you lose the case, you continue to maintain
the bias issue on judicial review.
Thanks to Liz McIntyre and David Brown!
Disclaimer: This column does not constitute legal advice.
If you are still puzzling over what to do, consult a lawyer.
Acknowledgements
Thank you to all who helped put the FEBRUARY 2003 CALL/ACAMS
NEWSLETTER together:
Farah Baloo
Jesin Watson McCreary
Craig Bavis
Victory Square Law Office
David Blair
Victory Square Law Office
Don Bobert
Short Moore Arsenault
David Brown
Brown MacGillivray Stanley
Pierre Brun and others
Grondin, Poudrier, Bernier
Chirs Buchanan
Granville & Pender Law Office
Yessy E. Byl
Blair Chahley Seveny
Leanne Chahley
Blair Chahley Seveny
Barb Cooper
Gordon Forsyth
Pink Breen Larkin
Anne Gregory
UFCW, Local 832
Niclole Harley
Levine Levene Tadman
Allison Hudgins
Garth Knox
Koskie Minsky
Joanne Kolmes
Chivers Kanee
Julie Noordhoek
Lancaster House
Joy O’Hara
Lancaster House
Christie Macdonald
Fiorillo Glavin Gordon
Nathalie Marcotte
Translator
Austin Marshall
Marshall & Company
Dale Marshall
Canadian Centre for Policy Alternatives
Liz McIntyre
Cavalluzzo, Hayes, Shilton, McIntyre and Cornish
Jennifer Penney
Susan Philpott
Koskie Minsky
David Roberts
Pink Breen Larkin
Mandy Sigurgeirson
Granville & Pender Labour
Law Office
David Wright
Ryder Wright Blair and Doyle
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