CALL-ACAMS Newsletter - 2002
What's Happening
Alberta
1. Labour News, Legislative Update
2. Court Decisions
3. Labour Relations Board Decisions
4. Arbitration Decisions
British Columbia
1. Breaking News
2. Labour News
3. Legislation/ Policy Update
4. Board Decisions
5. Court Decisions
6. Human Rights
Manitoba
New Brunswick
Newfoundland
Nova Scotia
Northwest Territories
Ontario
Saskatchewan
1. Saskatchewan Labour Relations Board Decisions
2. Court Decisions
3. Arbitration Awards
Quebec
1. Reform of the Labour Code
2. Responsibilities and Obligations of a Union and its Representatives
3. Demutualization
4. The Safeguarding Order
Motion Briefs
Collected Wisdom
Building Bridges
Dick Martin - A Tribute
Contributors to the CALL Newsletter
WHAT'S HAPPENING?
This column is designed to provide members with regular information on what CALL has been doing as an organization, to tell you about events that are in the works, and to share stories about CALL members that you may find interesting or important.
ANNUAL CALL CONFERENCE
CALL's annual conference will be held in Vancouver this year. Reception will open Thursday evening, June 6, 2002 and the conference will run through until Sunday, June 9, 2002, ending around mid-day. The conference hotel is the Coast Plaza, Stanley Park which is located on beautiful English Bay, 15 minutes walk from Stanley Park.
You can expect to receive a registration package by e-mail early in the Spring. The Vancouver organizing committee is headed up by Shona Moore who can be reached at shona@shorttco.com if you have any ques-tions before that.
MEXICO CONFERENCE
CALL and the Mexican association of labour lawyers, ANAD, whose members work with the independent trade union movement in Mexico, in conjunction with our American counterparts (AFL-CIO) organized a study conference held in Mexico City at Hotel Emporio on the weekend of February 22-24, 2002.
There were two broad goals for the conference:
1) provide an opportunity for a larger number of Canadian and Mexican lawyers to meet and ex-change experiences and information
2) continue with the development of joint strategies and tactics to improve the position of labour movement in Mexico, Canada and the USA under NAFTA
The agenda was as follows:
On Friday, February 22, current labour issues in Mexico, Canada and the United States, including an intro-ductory session to the Mexican labour relations system for Canadians were discussed.
On Saturday, February 23, a close look at the North American Agreement on Labour Cooperation (NAALC) under NAFTA and the proposals for labour accord (the "social dimension") under the proposed Free Trade for the Americas (FTAA)
On Sunday, February 24, there was a regular meeting of the laboralistas group
ANTI-TERRORISM LEGISLATION
Anti-terrorism legislation (Bill C-36) - CALL/ACAMS representatives appeared before the Standing Committee on Justice and Human Rights on November 8, 2001 to present a brief on behalf of CALL/ACAMS in respect of the new anti- terrorism legislation. Steven Barrett and Ethan Poskanzer of Sack Goldblatt Mitchell, Michael Gottheil of Caroline Engelmann Gottheil and Sean McGee of Nelligan Power appeared on behalf of CALL. The brief focussed on the definition of terrorism and the very real pos-sibility that the breadth of the definition would capture legitmate protests, trade union activity and in par-ticular strikes in essential services.
The brief was prepared by Ethan Poskanzer and Steven Barrett. Steven Barrett made the oral presentation to the Committee. Sean McGee ensured the accuracy of the French translation on extremely short notice and prepared a press release which was picked up by some of the media. The brief is available in both french and english on the CALL website at www.call-acams.com at the Conference and Activities page, under the heading Current Activities.
BEYOND THE CALL OF (CALL) DUTY
CALL members have been actively using their contacts in CALL and other organizations to advance the in-terests of labour.
Craig Flood of Koskie Minsky is a passionate member of the OBA Administrative Law Section Executive and was recently instrumental, with help from his friends and colleagues, in persuading the OBA/CBA to intervene in the CUPE/SEIU v. Minister of Labour for Ontario appeal at the Supreme Court of Canada. Ko-skie Minsky, WeirFoulds and Lang Michener have all agreed to act pro bono on behalf of the CBA. Leave to intervene was granted by the SCC on January 11, 2002.
Francine Lamy of Grondin Poudrier is the CBA liaison with the Ministry of Justice with the responsibility to follow all changes involving labour and employment Law. She has indicated that she will be able to pass on the information she receives in that role to CALL for distribution to the membership.
WEBSITE
CALL's website is up and running: www.call-acams.com. Francine Lamy is the webmaster and if you have questions or thoughts about the website, you can reach her at flamy@grondinpoudrier.com.
MEMBERSHIP CAMPAIGN
David Blair and Aida Holmes of Victory Square Law have been cleaning and purging the database. Soon there will exist the capacity to cull the list to find and communicate only with PAID-UP members. If you have not paid your 2001 membership fee - do so quickly please. You can find out directly from Aida if you have paid or not by e-mailing her ataholmes@vslo.bc.ca.
NEWSLETTER
Well, this is it - your new look newsletter, but this is part of a process, not a final product. We will con-tinue to revamp the formatting and content over the next few issues. Let us know what you think -
we welcome your thoughts and your input.
The Newsletter Committee is:
Denis Bradet, Quebec Editor dbradet@grondinpoudrier.com
Anne Gregory, Prairies Co-Editor, Motions Briefs anne.gregory@ufcw832.com
Nicole Harley, Prairies Co-Editor nharley@llt.mb.ca
Alison Hudgins, Building Bridges ahudgins@attcanada.ca
Jula Hughes, Ontario Editor, Collected Wisdom jhughes@ceglaw.com
Cathie Parker, West Editor cparker@arvayfinlay.com
Susan Philpott, Editor sphilpott@koskieminsky.com
David Roberts, East Coast Editor droberts@labour-law.com
ALBERTA
1. Labour News, Legislative Update
2. Court Decisions
3. Labour Relations Board Decisions
4. Arbitration Decisions
1. Labour News, Legislative Update
We are in the calm before the storm in terms of labour legislation in Alberta. The government has stated that it will open the Labour Relations Code up for review this spring - something that has not been done since 1988. We are very uncertain about their agenda but expect that it will not be good for labour. Alberta educators are gearing up for a large teacher's strike and in response, the gov-ernment is gearing up to legislate them back to work. Feels almost like a pattern out here in the West.
In Labour Relations Board news, the Vice-Chair seat is currently vacant, but it is in the process of being filled. We look forward to hearing about the successful applicant before the end of January 2002. In addition, changes are in the works for workers' compensation but the dust has not yet settled. It should be an interesting year - the land-scape of labour law in Alberta may be significantly dif-ferent once all is said and done.
2. Court Decisions
There are four Alberta Court decisions relating to labour law that we would like to report on for this edition of the newsletter.
Collective Agreement Binding on Successor
In this case, the Albert Court of Appeal fully restored a previous decision of the Alberta Labour Relations Board. The Board had found that in a case of successorship from an employer governed by public sector legislation (the Public Service Employee Relations Act) to an employer governed by the Labour Relations Code, although the certification could not be transferred, the collective agreement could. Provided that it met the definition of collective agreement under the Labour Relations Code, the collective agreement could be transferred to the new employer. In this case, the successorship occurred be-cause the employees involved were switched to different employers by the operation of legislative changes to their municipal structures.
The Court of Appeal first clarified some lingering doubts about the correct standard of review that had plagued the Queen's Bench. The Court of Appeal found that the highest standard was applicable. The Court of Queen's Bench had quashed the Board's decision on the basis that the Board had denied the government its rights to natural justice. Not finding any such denial, the Court of Appeal went on to hold that the Board's decision on the merits was not patently unreasonable. The reasoning makes it clear that the Court of Appeal was not interested in entertaining any arguments against the decision. It is unclear whether this matter will be pursued further.
R. v. The Alberta Labour Relations Board, et. al. (Saddle Hills) (Alta. Q.B., Jan. 4, 2002).
Counsel for the Union: Brent Gawne.
Hiring Hall Provisions Not Restrictive of Management Rights
This case involved judicial review of an Arbitrator's deci-sion relating to management rights in the context of a collective bargaining agreement. The Union had grieved the employer's refusal to hire an individual dispatched from the union. The Arbitrator upheld the grievance, find-ing that, generally speaking, because of the terms of the agreement the employer could not refuse to hire a quali-fied worker. In reaching her decision, the Arbitrator con-cluded that the hiring hall provision and the limited "name hire" provision of the collective agreement to-gether constituted an express limitation of management rights to select and hire as the employer wished. The pro-visions in question are fairly standard provisions in collective agreements. The employer applied for judicial review.
On judicial review, the Court quashed the Arbitra-tor's decision and remitted the matter back to a new arbi-tration panel. The Court found that the Arbitrator had made a jurisdictional error when she found that the hiring hall provisions expressly intended to impose restrictions on management rights. In the Court's view, the provisions were not express, and as such, could not override the management rights in the terms of the agreement. The Court concluded that the Arbitrator had essentially found the restriction on management rights by implying it from other provisions in the agreement. To so find was effec-tively to amend, alter or change the collective agreement in excess of the Arbitrator's jurisdiction. The Union is considering an appeal of the Court's decision. In the meantime, especially given the standard nature of the provisions at issue, this case has some far reaching ef-fects.
Voice Construction Ltd. v. Construction & General Workers' Un-ion, Local 92 [2001] A.J. No. 488 (Alta. Q.B.).
Counsel for the Union: Lyle Kanee.
Board's Approach to Picketing Overturned
On this application, the Court overturned the decision of the Labour Relations Board. During the Petro-Canada strike, the Alberta Labour Relations Board had refined the jurisprudence it had begun to develop during earlier strikes. The Board had adopted a two-step test for dealing with pickets: first determining if the picketing contained unlawful elements, and then, if it did, addressing how best to regulate the activity. The Board had made it clear that its first response would not necessarily be to shut down picketing, even where it was found to have been unlawful.
Among other findings, the Court reviewed the Board's approach and found it to be patently unreason-able. The Union is appealing this decision. In the mean-time, considerable uncertainty exists as to how the Labour Relations Board will respond in future picketing situa-tions.
Construction Labour Relations - An Alberta Association v. CEP, Local 501A [2001] A.J. No. 1473 (Alta. Q.B.).
Counsel for the Union: Leanne Chahley, Bob Blakely and Micah Field appeared for the intervenor Alberta Trades Council.
Workplace Harassment Compensable
The Alberta Court of Queen's Bench overturned a WCB decision that denied Mr. Ron Harry WCB benefits for stress leave. Harry had been off work for a back-injury. When he returned to work, he was subjected to harass-ment in the form of taunts and insinuations from man-agement. This harassment caused significant anxiety and stress for Mr. Harry. His doctor recommended that he not return to work until the harassment ceased. He applied for WCB as a result of the harassment.
In denying his claim, the Board relied on a policy that states that the Workers' Compensation Board will consider a claim for a psychiatric or psychological disability when the condition is an emotional reaction in response to a single traumatic work-related incident that is sudden as well as frightening or shocking and has a specific identifiable time and place (for example, victim or witness to a robbery or a hostage-taking incident ...).
The WCB Act s. 19(1)(a) provides that compensa-tion under the Act is payable to a worker who suffers per-sonal injury "by an accident". An accident is defined in s.1(a) of the Act as follows: "Accident means an accident that arises out of and occurs in the course of employment in an industry to which the Act applies and includes (1) a willful and intentional act, not being the act of the worker who suffers the accident.
In its decision, the Court found that: (1) the harass-ment suffered by Mr. Harry was the result of a willful and intentional act of his employer, and that it was within the scope of the Act and entitled to coverage; (2) the Board exceeded their jurisdiction by restricting the scope and application of the legislation implementing their psychiat-ric or psychological disability policy; and (3) the appro-priate standard of review for the Appeals Commission's decision is patent unreasonableness. The Board deter-mined that Mr. Harry had a bona fide stress condition and that there was no evidence contrary to it being work-related stress.
Harry v. Alberta (Workers' Compensation Board) [2001] A.J. No. 1384 (Alta. Q.B.).
Counsel for the Union: D.J. Gosselin.
3. Labour Relations Board Decisions
Although there were many decisions from the Board dur-ing the past year, there is only one that we will report on at this time.
Charter Must be Raised at First Instance
In this case, the City of Calgary transferred a portion of its business to Enmax, and transferred the employees with that business. As a result the transferred employees were not entitled to exercise rights under the City of Calgary collective agreement regarding relocation, retraining, and/or severance. The Union sought reconsideration of the Board's earlier decision that upon the successorship, the collective agreement and the employees transferred seamlessly. The Union argued that the employees should have the right to give their consent to their transfer. Fur-ther, the Union contended that to deny the right to consent constituted a denial of rights under the Charter. The re-quest to reconsider the original decision against the Un-ion's position was denied.
The Board found that the Union should have raised the Charter argument in front of the original panel regard-less of the fact that the original matter proceeded on an urgent basis. Although the Board suggested that this course of action may not always be required, the reason-ing leads one to believe that any practice of standing Charter issues down to address only if necessary is dan-gerous in Alberta. Further, the panel stated that, in its view, the rights accorded under the successorship provi-sions of the Labour Relations Code do not give rise to a situation that can be argued to infringe freedom of asso-ciation rights under the Charter.
CUPE, Local 38 and the Corporation of the City of Calgary and Enmax Corporation [2001] A.L.R.B.D. No. 136.
Counsel for the Union: Bill Johnson.
4. Arbitration Decisions
Flu Vaccination Requirement Not a
Charter Violation
In this case, the Union challenged a practice that has arisen in Alberta which requires health care workers, es-pecially those working with the elderly, to have flu vacci-nations each year unless they have medical or religious reasons to be excluded. Employees who declined to have the vaccinations were required to stay home without pay during the periods of high flu outbreaks. (The award is not clear, but we believe that those who had acceptable reasons to decline the vaccinations were sent home with pay).
The Union challenged this on the basis of the Char-ter. The Board found that the flu vaccination rule met the KVP criteria. The Board found that it was doubtful that
the Charter applied to non-state actions, but even it if did, the Board found that the policy did not offend the Charter or, alternatively, that it was a justifiable limit.
Carewest v. AUPE [2001] A.G.A.A. No. 76 (P. Smith).
Counsel for the Union: Lisa Shields.
BRITISH COLUMBIA
1. Breaking News
2. Labour News
3. Legislation/Policy Update
4. Board Decisions
5. Court Decisions
6. Human Rights
1. Breaking News
Over the course of one weekend, the Liberal Government has rushed through the passage of three bills which will substantially alter the provision of education, health and social services in this province. Two of the pieces of leg-islation, Bill 27 and Bill 28, together impose a restrictive collective agreement on the members of the BC Teachers' Federation and dictate limits on any future bargaining attempts. The third piece, Bill 29, ushers in sweeping changes to existing collective agreements in the health and social services sectors, eliminating the ability of un-ions to bargain for their members on several key issues.
BILL 27 - Education Services Collective Agreement Act
Bill 27, the Education Services Collective Agreement Act, imposes a three-year collective agreement on union mem-bers after 10 months of failed negotiations. One of the biggest sticking points in the negotiations was the issue of pay raises. Under Bill 27, the teachers will receive a raise of 7.5% over three years, which is less than half the 18 % increase they sought. The Bill also amalgamates 9 indi-vidual district agreements into this one single agreement. In addition, the bill provides for an arbitrator to determine by May 11, 2002, whether any of the existing provisions in the collective agreement conflict with the class-size and composition requirements under Bill 28. To the extent that there is conflict, the collective agreement is void. Although the parties are supposedly given the ability the change the agreement, in reality, they cannot vary any terms of the agreement that were legislatively imposed or any provisions which would create an obligation on the government. In short, their hands are tied. Also under Bill 27, the Minister may appoint a Commissioner to inquire into future bargaining structures and procedures. The Commissioner may consider a list of factors including reduced potential for disruption of services and expedi-tious dispute settlement.
BILL 28 - Public Education Flexibility and Choice Act
A partner to Bill 27, Bill 28 - colloquially called the Pub-lic Education Flexibility and Choice Act - moves limits on class-size out of teachers' contracts and into the School Act, which leaves them under the control of individual school districts. Current class size limits are set at 20 stu-dents for kindergarten, 22 for grades 1 to 3, and 30 for grades 4 through 12. Bill 28 would increase limits to 22 for kindergarten, 24 for grades 1-3 and a "district-average" of 30 for the higher years. What this means in reality is that widely varying class sizes could exist from school to school, as long as the district average is main-tained. And if that's not enough, Cabinet may proscribe by regulation the methods or formulas by which to deter-mine district class averages. Contracts for unionized col-lege instructors are also rewritten by the Bill to increase class-size and create an additional 4,800 spaces for full-time-equivalent students.
Bill 28 also:
· allows Boards to contract out for provision of stu-dent meal services, regardless of collective agree-ments with support staff;
· removes staffing ratios and levels, and case and teaching loads as future subjects of bargaining
· gets rid of any limits on the Boards' powers to es-tablish or change schedules for the provision of educational services or the availability of teachers for non-instructional, administrative or other duties;
· removes from the collective agreements all guaran-tees of services for children with special needs as well as guarantees of support from specialist teach-ers such as librarians, counsellors and ESL teach-ers, leaving them instead to the discretion of indi-vidual school districts.
In protest, teachers in BC staged 39 different events across the province on Monday, January 28th to show their outrage and disappointment at the Campbell govern-ment's treatment of teachers, and by extension, students. While Campbell warned that to do so would be to break the newly imposed agreement, teachers maintain that they, like other citizens, are entitled to political protest.
BILL 29 - Health and Social Services Delivery Improvement Act
The Health and Social Services Delivery Improvement Act, Bill 29, passed its third reading in the early morning hours of January 28th. The Government took the position that action on health care and social services was critical for BC. Critics object to what they consider drastic legis-lation, enacted without proper consultation. Unions for the health and social services sectors are outraged by the legislation's ability to unilaterally change collective agreements, leaving them restricted powers to negotiate for the future.
The Health Sector is covered by Part 2 of the Act, and under section 10, any collective agreement which is inconsistent with this part is void. The Act provides that no collective agreement may restrict, limit or regulate an employer's right to contract out non-clinical services. Non-clinical services are broadly defined in the Act, en-compassing all services other than medical, diagnostic or therapeutic services provided by certain health profes-sionals to a person currently admitted to a bed in an inpa-tient unit in certain designated hospitals. The Act allows for this definition to be broadened as additional regula-tions are enacted. And, the legislation declares void any provision in a collective agreement that would require the health employer to consult with the union prior to con-tracting out for non-clinical services. Health sector em-ployees' rights upon transfer to different facilities or re-gions have been severely limited by the Act, which also drastically restricts hard-won bumping provisions.
In addition, the new Act effectively removes the Employment Security and Labour Force Adjustment Agreement, which, through collective agreements, had provided employment security for health employees laid off due to reorganization. Finally, the Act provides that for the period ending December 31, 2005, a collective agreement cannot contain a provision which: restricts or limits lay-offs by health sector employers, requires condi-tions to be met before lay-offs, requires more than a sixty day notice period for lay-off, or provides employees with bumping options other than those specified in the Regula-tions.
Part 3 of the Act targets Social Services Sector em-ployees. For social service workers, the legislation rolls back previously negotiated gains in wages and benefits by eliminating agreements like those covering wage parity. Lay-off protection and other employment security provi-sions have been removed or replaced with more limited provisions. The new legislation also removes successor rights and the rights of new certifications to be covered by the standard agreement. In addition, the Act imposes more restricted conditions for notice and severance. The effect is to limit the unions' ability to freely negotiate future contracts for their members.
Under part 4 of the Act, the Government has at-tempted to insulate itself from actions for damages or compensation arising from the Act. However, at least one union, the Hospital Employees' Union, has announced its intention to challenge the legislation. It is unclear whether the HEU's lead will be followed by others affected by the new legislation.
Consequential amendments to the Health Authorities Act provide that the Labour Relations Board may on ap-plication or must on direction by the Minister consider whether continuation of a certification issues to a trade union is "appropriate." In making this determination, the Board must cancel a certification if such cancellation will improve industrial stability, enhance operational effi-ciency of health sector employers, enhance a health sector employer's ability to restructure, reorganize or integrate its services or functions, or create a single certification where employees are employees of a single health sector employer. The practical effect of these amendments re-mains to be seen.
[The contributor apologizes for any items below that appear to be "old news" following this first section.]
2. Labour News
The past year has brought some significant changes to labour legislation and policy in British Columbia. Among the newsworthy changes are the reintroduction of manda-tory representation votes and the designation of education as an essential service. The recent appointment of a new, full-time Chair of the BC Labour Relations Board also deserves notice. Brent Mullin served as Vice-Chair of the Board from 1992 to 1998, and recently practised labour, employment and human rights law with Fasken Martineau DuMoulin in Vancouver. Mullin's five year term took effect January 6, 2002. He was preceded by Steve Kelle-her, who was serving on a part-time basis for a one-year temporary term.
3. Legislation/Policy Update
Gordon Campbell's Liberal government has been busily changing and rearranging since taking office in May. In July, the Liberals restored open tendering on all govern-ment contracts, citing a need to increase competition and provide relief to taxpayers. On a similar note, the Skills Development and Fair Wage Repeal Act, which came into force September 26, 2001, eliminated the NDP's union-friendly policy for highway construction projects and government funded silviculture contracts. The Act also scraps the previous system of fixed wages for public con-struction contracts. Construction contracts signed before the Act came into force will continue under the old re-gime.
The Liberal government also targeted the Health Care sector with its Health Care Services Collective Agreements Act, which repealed the short-lived Health Care Services Continuation Act. (This brief piece of legis-lation had authorized the Minister of Skills Development and Labour to order a cooling-off period for health sector disputes, during which strikes and lockouts were prohib-ited). The new legislation came into force August 9, 2001. It deemed that a new collective agreement for registered nurses was constituted. The new agreement essentially continued the former agreement as amended by provi-sions negotiated and agreed to between the Health Em-ployers' Association of BC (HEABC) and the Nurses Bargaining Association. The new agreement was also influenced by terms from the settlement package submit-ted by HEABC in July 2001. One of the terms is a wage increase averaging 23.5% over three years. The Act also provides for a similar agreement for BC Paramedical Pro-fessionals.
Perhaps most significant, however, are the changes to the Labour Relations Code that arise from the Skills Development and Labour Statutes Amendment Act, 2001. The Act took effect August 16, 2001 (except sections 12 and 13 - into effect September 11) and introduced changes to three major areas: trade certification, sectoral bargaining in the construction industry and essential ser-vices in education.
With regards to trade certification, the new legisla-tion restores the mandatory secret ballot vote for all union certification applications under the Code. The vote must be conducted within 10 days from the date the application is received by the Labour Relations Board, or within a longer period as determined by the Board if the vote is to be conducted by mail. The Board may also require an additional vote if less than 55% of the employees in the unit cast ballots.
In terms of the construction industry, the Act repeals Part 4.1 of the Code, which was the provision for sectoral bargaining. The repealed section had provided for a col-lective, master agreement to govern the operations of bar-gaining relationships between all craft unions and union-ized employers in certain parts of the construction indus-try. Despite the repeal, the Union Bargaining Council continues in force for the purposes of collective bargain-ing under the Code with the Construction Labour Rela-tions Association of BC representing contractors.
Finally, the Act designates education as an "essential service" under the Code. The amendments authorize the Chair of the Board to investigate whether or not a collec-tive bargaining dispute poses a threat, not only to the health, safety and welfare of BC residents, but also to the "provision of educational programs" to students under the School Act. Subsequent to this legislation, and in response to the ongoing BCTF job action, the Board has made sev-eral decisions with respect to determining which elements of the educational program are "essential." After-school supervision and report cards were not found to be essen-tial, and in some areas have been withdrawn.
4. Board Decisions
In addition to the decision in Certain Employees of White Spot Limited (covered in last year's newsletter), two other policy-based decisions issued by the Labour Relations Board in 2001 merit mention.
Franchisor and Franchisee: Common Employers?
This case deals with common employer applications in the context of franchise operations. It arose from a previ-ous decision of the panel dismissing the CAW's applica-tion for a declaration that a franchisor and franchisee con-stituted a common employer.
The Reconsideration Panel used the CCAG factors as the starting point for considering common control or direction. The panel found that common control and di-rection can be established in franchise situations. In this context, the CCAG factors are used to determine distribu-tion of power and the existence of sufficient control to permit a finding of common control or direction. For con-trol to be sufficient, it must be substantial, the test for which is both qualitative and quantitative. In the event that common control or direction is established, the Board will balance the validity of the labour relations purpose with the particular facts, the purpose of Section 38 and the relevant purposes of Section 2.
The Panel acknowledged that different combinations of control in a franchise may require different labour rela-tions outcomes. To achieve the best outcome, the Board may consider the appropriateness of various options, in-cluding single versus multiple certifications, and tailored bargaining structures.
KFCC/Pepsico Holdings Ltd., BCLRB No. B283/2001 (Leave for Reconsideration of BCLRB No. B390/98).
Counsel for the Union: Stuart Rush, Q.C., (CAW Local 3000).
Union's Certificate Cancelled for Fraud
This decision provided reasons for an earlier decision of the panel ordering the cancellation of the CEP Local 2000's certification for fraud. The order was made follow-ing a finding that the union had relied on four forged membership cards when applying for certification. Had it not relied on those four cards, it would not have qualified for automatic certification under Section 23. The Union maintained that this was not the issue at hand.
At the time of the original hearing, Local 2000 was engaged in a strike. The Employer, upon obtaining evi-dence of the fraud, applied to the Board for cancellation of Local 2000's certification. The Union president con-ceded that the signatures were forged, and acknowledged the seriousness of the situation. While the Union testified to the best of its ability, the identity of those responsible remains unknown.
The Panel commented that this was the first inci-dence of certification on the basis of forged evidence since the Code's enactment in 1973. In the interests of preserving the integrity of the card-based system, the Panel found it necessary to cancel Local 2000's certifica-tion. According to the Panel, Local 2000's conduct throughout the affair and the hearing did not dispel this feeling. The Union did not call any direct evidence on how its membership cards were procured, nor did it dis-close its own concerns about the cards to the Board.
While cognizant of the fact that, since certification, Local 2000 enjoyed considerable employee support, the Panel wished to illustrate clearly that it was not possible to justify a wrongful action in the past on the basis of pre-sent support. [This reasoning is not unlike the Supreme Court of Canada's treatment of the "effectivity" principle in the Reference Re: Secession of Quebec. Just as the Court ruled that Quebec could not legally secede by sepa-rating first and then justifying their actions through sub-sequent international recognition, here the Union could not use its present level of support to justify having ob-tained certification through forged cards.] The Panel was also concerned about the negative impacts that the deci-sion would have on employees, but felt this concern was mitigated by the employees' ability to immediately seek union representation if they wished to do so. Without conclusive evidence of who was responsible for the abuse of process, the Panel declined to award damages or costs. The ongoing strike was declared unlawful.
[The Board's comments respecting Local 2000's conduct do not explain the basis for the Union's position. Although it had its suspicions prior to the hearing, given the gravity of the accusations, the Union maintained that it wanted to hear the evidence first. The Panel appeared to believe that the Union should have relinquished its certification as soon as the suspicions surfaced. That said, it is important to note that the Panel's decision did not implicate the Union in the fraud.
The Union's position, taking its cue from an earlier Board decision in Fabricland, was that the ability of the four forged cards to affect their automatic certification was irrelevant. In Fabricland, the Board had ruled that the existence of one problematic card in relation to the overall status of that union was immaterial. To avoid this same kind of scrutiny, the Union in this case relied on evidence of subsequent support for representation.
Immediately following this decision, the Union re-applied for certification and began the voting process. The Employer opposed the application, and the ballot boxes were sealed. The Board ruled on January 24, 2002 that the Union could proceed with its application, however the Board refused to allow the cast ballots to be counted. A new vote was to take place the last week of January 2002.]
R.C. Purdy Chocolates Ltd [Certain Employees of], BCLRC No. 412/2001.
Counsel for the Union: David Tarasoff.
5. Court Decisions
The BC Court of Appeal released several important la-bour decisions over the course of the past year - only two are highlighted here. Both of the cases that follow dealt with human rights-related issues in the labour context.
Retirement Mandatory? Maybe Not
In this much-publicized case, the Court of Appeal revis-ited the requirements for justification of mandatory re-tirement policies, holding that each policy must be justi-fied on a case-by-case basis. The majority distinguished the 1996 SCC decision in McKinney v. University of Guelph, which had upheld legislation permitting man-datory retirement, adding that, even if not distinguishable, the issue deserved reconsideration on its merits.
The Greater Vancouver Regional District (GVRD), pursuant to a 15-year-old unwritten policy, effected the mandatory retirement of waste plant operator Ray Coutts at age 65. The GVRD cited the BC Human Rights Code cap for protection from age discrimination in both the public and private sectors at 65, as well as the McKinney decision in support of its policy. In McKinney, the SCC had found that although the mandatory retirement policy constituted age discrimination under s. 15 of the Charter, it was saved as a reasonable limit under s. 1. The Union filed a grievance claiming that as a governmental body, the GVRD was directly subject to the Charter and could not simply rely on the Human Rights Code. In addition, reliance on the McKinney case was insufficient - the pol-icy needed to be justified on its own merits.
The majority of the Court of Appeal accepted the Union's reasoning, distinguishing McKinney for its focus in the private rather than public sector: "McKinney is not definitive of the constitutionality of all mandatory retire-ment policies in the public sector, without regard to the nature of the employment or the underlying factual foun-dation of each case. It does not relieve an employer of the onus of establishing that its policy of mandatory retire-ment is justifiable under s. 1 of the Charter..." The Court further urged the Supreme Court of Canada to reconsider this issue of "national importance" in light of the extent to which mandatory retirement policies impact on other equality rights and on the mobility of the workforce.
Greater Vancouver Regional District Employees' Union v. Greater Vancouver Regional District, 2001 BCCA 435.
Counsel for the Union: C.G. Buchanan and P. Dickie.
Arbitrator Made Fundamental Error Holding Employer Liable for Insurer's Policies
This was an appeal from a dismissal of an application for judicial review. The application was sought pursuant to a labour Arbitrator's ruling that he had jurisdiction to de-cide the issue in this case. The Arbitrator's decision was upheld by two separate sittings of the BC Labour Rela-tions Board, before the petitioner (the employer) sought judicial review. The Court of Appeal allowed the appeal, quashing the decisions of the LRB and the Arbitrator and declaring the issue raised by the Union to be beyond the Arbitrator's jurisdiction. In so doing, the Court applied the Supreme Court of Canada's decision in Weber v. On-tario Hydro.
The Union filed a grievance on behalf of an em-ployee who had been denied her request to have her same sex partner added to the medical insurance plan, the pre-miums for which are paid by the employer under the terms of the collective agreement. The terms of the collec-tive agreement stated that coverage was subject to the terms provided by the respective insurance companies. The insurance policy defined "common law spouse" as a person in a relationship with someone of the opposite sex. The Union sought a declaration that the definition and its application was void and discriminatory, and sought an order against the employer to compel the insurer to amend its policy to comply with the Human Rights Code.
The Court held there were two tasks in the case: "to define the essential character of the dispute raised by the employee and to consider the ambit of the Collective Agreement." Once clarified, the Court needed to answer whether the essential character of the dispute arose from the Collective Agreement. According to the Court of Ap-peal, the real gist of the lis was between the Union and the insurer, not the Union and the employer. This finding shifted the dispute out of the realm of the collective agreement, and therefore out of the Arbitrator's jurisdic-tion. At issue was not the validity of the benefits paid for by the employer, but rather the validity of the language of the policy itself.
By confusing the employer's obligations under the collective agreement with the insurer's obligations under the policy, the Arbitrator was found to have committed a fundamental error. This error, in turn, was determinative of the appeal, which was allowed.
Elkview Coal v. United Steelworkers et al., 2001 BCCA 488.
Counsel for the Union: D. Blair, C. Bavis.
6. Human Rights
Union's Settlement of Human Rights Claim Binding on Grievor
The BCLRB, in Goggins v. Pacifica Papers Inc. (BCLRB No. B288/2001) ruled that a union may settle a human rights complaint without the grievor's consent. In this case, the Union grieved Goggins' termination, alleging discrimination on the basis of a permanent disability. The Union and the employer agreed to an independent func-tional evaluation.
Goggins participated in the evaluation, but never gave consent to this initial agreement. He also did not consent to a second agreement in which the employer agreed to his reinstatement, or to a third agreement to resolve further issues through arbitration. The Arbitrator ruled that issues of accommodation had been settled be-tween the Union and the employer, and therefore confined himself to an order for remedy. Goggins' applied to the BC Labour Relations Board for a review of the Arbitra-tor's decision.
The LRB dismissed the initial application, prompt-ing Goggins to apply for reconsideration. He maintained that the union had no legal authority to waive his rights under the Human Rights Code. The LRB rejected Gog-gins' arguments again, noting that the arbitrator had been appointed by the two parties to the dispute, and that the Union had legal authority to enter into an agreement without Goggins' consent. The Board found the agree-ment to be a settlement of a human rights grievance, rather than a waiver of individual human rights. Addi-tional support for this ruling was found in the Human Rights Code itself, which provides that human rights claims may be settled through the grievance mechanism.
Goggins v. Pacifica Papers Inc. (BCLRB No. B288/2001).
Counsel for the Union: John Rogers.
MANITOBA
WCB Appeal Commission Sorts out Right of Action
In Manitoba, the WCB Appeal Commission can deter-mine whether a civil action is statute barred by the WCB Act (section 68(4)).
X filed a statement of claim against B and V, two male former co-workers, and her employer. She alleged intentional and wrongful assault (sexual harassment) by her co-workers while she was working, that the Employer was vicariously liable for the co-workers' actions, and wrongful dismissal because she quit as a result of the har-assment.
The plaintiff alleged that over approximately 6 months, B and V touched her, and made lewd and sexual remarks, including remarks about her breasts. During this period she complained to the employer verbally, and told the employer she couldn't work with B. She made a writ-ten complaint a few days later. Shortly after that she went on vacation and on her return was scheduled to work with B. B was uncooperative.
A new assistant manager was assigned to the store after her vacation. He was V's brother. He continuously pressured her to quit, criticized her work and called her lazy. After about a month, X quit.
She claimed that B and V caused her nervous shock, and that the employer failed to take the necessary steps to rectify the situation. And, because of the actions of B and V and the employer, she had to quit. She lost income, was unable to work and had incurred the cost of medical treatment.
In September 2000, legal counsel for the (defendant) employer requested that the Commission adjudicate and determine if X had a right of action, or if her claim was statute barred by the WCB Act.
The Commission had to determine:
3) Is the action against the defendant co-workers was statute barred?
4) Is the action against the employer respecting an al-leged workplace accident statute barred? And, flowing from that, is a claim against the employer for vicarious liability for the conduct of the co-workers statute barred?
5) Is the action against the employer regarding the claim for wrongful dismissal statute barred?
The Commission confirmed that sexual harassment or assault, if it occurs at work, is an "accident" for the pur-poses of WCB legislation. Since X was at work, and did nothing to take herself out of the course of her employ-ment, the injury to her occurred because of an "accident" as defined by the WCB legislation. Because of this, she could not sue her employer for personal injury because of section 13(1) of Manitoba's WCB legislation.
In arguing that X could not sue for wrongful dis-missal, the employer argued that the WCB scheme was a "historic trade-off" and employees gave up their right to sue, which would include the right to sue for wrongful dismissal. The Commission disagreed and found that the wrongful dismissal claim was in response to decisions made by management after her accident which caused the compensable injury. Therefore it was not covered by sec-tion 13(1) of The Act. X did have the right to sue her em-ployer for wrongful dismissal.
Counsel for B and V argued that the actions of their clients which caused the injury to X, or the "accident", occurred at work. Therefore, the "obnoxious behavior" was an incident of employment. It was suggested that the sexual harassment was "an attempt at horseplay". The Commission reviewed the jurisprudence in this area, and concluded that the B and V had taken themselves out of the course of their employment and were not sheltered by the WCB Act. X could sue them.
Finally, the Commission found that since the action against the employer for injuries suffered by X was stat-ute barred, the employer was also protected against an action which would seek to find them vicariously liable for the actions of B and V.
It was not considered in this proceeding, but the question is open whether X could file a human rights complaint against her employer as well.
Indexed as:
Decision No 96/01, The Appeal Commission, 27 July 2001. Terry Sargeant, chair. Allan Finkel, Margaret Day.
Counsel for the Plaintiff: Pamela Reilly - Cassidy Ramsay (Wpg).
Counsel for the Employer: Richard Buchwald - Pitblado Buchwald Asper (Wpg).
Counsel for the Co-defendants:
Steven Gingera - Edmond, Muir (Wpg), Rocky Kravetsky (Wpg).
Dismissal not Warranted, but Employment Relationship Irreparably Damaged - Board Orders Damages
The grievor was a 26 year employee in a lab at a hospital. In May 1999, the laboratory was closed because of con-cerns about how certain equipment had been disinfected in the lab. There was media coverage of the closure and the reasons why. The grievor was responsible for per-forming motility and PH tests on patients referred to the lab from time to time. He was suspended pending investi-gation the same day the lab was closed, because the em-ployer was concerned about how he had performed his duties. He was later terminated.
The Association grieved the suspension and the ter-mination. Inter alia, the remedy requested included dam-ages and interest to the grievor for the tort of intentionally or negligently inflicting mental distress or suffering. Pub-lic apologies by the employer to appropriate news media were also requested.
The Arbitration Board found there was cause to dis-cipline the grievor, who failed to follow proper proce-dures. They also found that the Hospital had not properly monitored the lab and would normally have considered modifying the discipline.
Considering reinstatement, the Board found that the employment relationship was irreparably damaged and that the trust which underlies its essence had been breached. Damages were requested in the grievance, and the Arbitration Board found that they had jurisdiction under section 121(3) of The (Manitoba) Labour Relations Act, and the Collective Agreement to award damages.
The Arbitration Board also reviewed a number of recent decisions confirming their right to award damages in certain circumstances. They were quick to point out that denying the remedy of reinstatement and substituting damages or some other form of relief is regarded as a most exceptional circumstance.
The Arbitration Board rejected the grievor's tort claim saying they did not have jurisdiction. They pro-vided an award of damages that they felt was just and equitable under the circumstances, which was one month pay for each of year of service.
Indexed as:
St. Boniface General Hospital and Manitoba Association of Health Care Professionals [2000] M.G.A.D. No. 33 (Hamilton, Smith, & Simpson).
Counsel for the Union: John Poyser & Sandip Sett - Inkster Christie Hughes (Wpg).
Grievor Discharged for Refusing to Apologize
The grievor was a seasonal worker with the City of Win-nipeg. He had a verbal confrontation with his supervisor and swore at him. The exchange was overheard by mem-bers of the public, and other City staff.
The grievor was suspended for 15.5 hours. He was also required give the supervisor a verbal and written apology. The grievor didn't grieve the discipline, served the suspension, but refused to apologize. Management did not discover he hadn't apologized for approximately 2 months.
The City made several attempts to persuade the grievor to apologize, including meetings, warnings, and a further suspension. A panel of three department directors then conducted a hearing and gave the grievor a last op-portunity to apologize. When he continued to refuse, they discharged him.
The Union then grieved both the initial 15.5 day suspension, as well as the subsequent suspension, but did not grieve the requirement to apologize. At the arbitration, the grievor testified that he simply could not apologize to the supervisor because he felt he had been provoked. The grievor testified that even now, he could not apologize.
The City argued that the grievor's conduct was in-subordinate and the grievor refusing to follow the lawful order of his manager. Employees can't pick and choose which orders to follow.
The Union argued the grievor should not be termi-nated for refusing to apologize. The Union noted that the grievor had worked for two months after the initial disci-pline was imposed, so the apology was not critical to the operation of the department.
Arbitrator Freedman noted that the requirement to apologize, having not been grieved, was a lawful order of the City. The grievor was refusing to comply. It was found that the conduct of the grievor reflected a contempt of the employer's authority. It was noted that the grievor was given many opportunities to comply, he was warned what would happen if he did not do so, and yet he main-tained his position.
The Arbitrator did however provide the grievor with one last chance. At the hearing, the City had made it clear that they were prepared to take the grievor back to work if he apologized. The Arbitrator ordered the grievor rein-stated if, within 15 days of the date of the Award, the written and verbal apology were provided to the supervi-sor. If the grievor did not provide the apologies within that time frame, the grievance was then deemed denied.
Indexed as:
City of Winnipeg and Canadian Union of Public Employees, Local 500 [2001] M.G.A.D. No. 62 (Freedman, Q.C.).
Counsel for the Union: Rick Weind (Cupe Regional Staff - Wpg).
Past Practice/Estoppel No shield if Action Breaches a Statute
Four teachers employed by the school division are all Jewish. At issue was the application of a particular article in the Collective Agreement dealing with leaves of ab-sence and its interplay with The Human Rights Code of Manitoba.
The Collective Agreement provided for an unpaid religious leave, if sufficient notice was provided. If the leave was approved, the corresponding amount of pay was deducted from their salary. The teachers grieved that deductions from their salary for approved leaves of ab-sence to observe the religious holy day of Yom Kippur were a misinterpretation and misapplication of both the leave article of the Collective Agreement, and The Hu-man Rights Code.
The Employer objected to the arbitrability of the grievance at the outset. The school division argued that the Grievors were estopped from proceeding with the grievance while the current Collective Agreement was in force. Similar or identical articles to the one in question had been in each of the Collective Agreements between the Division and the Association since 1976.
The Division argued that this was a textbook case of estoppel in a labour relations context. It was asserted that all of the essential elements of an estoppel were present. Namely:
1) A representation through conduct since 1976 by the bargaining agent that it was willing to be governed by the terms of the leave article.
2) Reliance by the Division on the article since at least 1976.
3) Detriment because the Division lost an opportunity to negotiate either an alternative provision relating to religious leave, or another provision in the Agreement as the quid pro quo for any changes to the religious leave provision.
The main argument of the Association was that accepting the Division's estoppel arguments would allow the parties to contract out of The Human Rights Code. Human rights legislation is special legislation that is to be accorded a special deference and respect, which cannot be overridden by a private contract. Nor can its provisions be thwarted by estoppel.
The Arbitration Board found the three elements of an estoppel were present. With respect to the human rights argument, the Arbitration Board reviewed the juris-prudence, in particular a 1994 decision, Chambly. [(1994) 115 DLR (4th) 609].
The Division agreed that the clause was discrimina-tory; however, they argued that the Collective Agreement clause was not illegal, in that it allowed time off for reli-gious leave to non-Christian teachers. The Division also argued that the article in the Collective Agreement was a reasonable accommodation of its Jewish teachers.
The Arbitration Board determined that estoppel could not be invoked to prevent the determination of whether the rights of non-Christian teachers under the Code had been violated. They noted that one of the important objectives of human rights legislation is to protect Canadians from discrimination in the workplace, that the legislation was of special character, and was to be applied to the construction and interpretation of Collective Agreements. The preliminary objection of the Division was dismissed.
The Arbitration Board stated clearly that they were not ruling on the merits of the case, only that it could be heard. It was open to the Division to argue at the hearing that they had reasonably accommodated the teachers.
This is part of a larger issue regarding Jewish teach-ers and religious holidays which the Manitoba Teacher's Society has been battling for several years in several divi-sions.
Indexed as:
St. James Assiniboia Teachers Association and St. James As-siniboia School Division No. 2 95 LAC (4th) 262 (Graham, Gab-bert, Simpson - dissenting).
Counsel for the Union: Mel Myers (retired).
LABOUR RELATIONS ACT, section 87
Since October 18, 2000, The Labour Relations Act for the Province of Manitoba has contained a provision for a Un-ion or an Employer to apply to the Manitoba Labour Board to have the provisions of a subsequent Collective Agreement settled by either the Labour Board or an arbi-trator in the event of a strike or lockout that has lasted 60 days or more.
Prior to Application, the parties must have attempted to conclude an Agreement with the assistance of a con-ciliation officer or mediator for at least 30 days during the period of the strike or lockout.
The Board has yet to render a decision on one of these Applications, although two have been filed, but some very serious defects in the legislation have been pointed out.
One of the considerations that the Board must de-termine on receiving the Application is whether or not the parties have bargained in good faith. In one of the Appli-cations the Employer took the position that the Union had not bargained in good faith and the Board determined that they had to hold a hearing with respect to those allega-tions and make a determination before they could proceed with the Application to settle the terms of the Agreement.
Another issue raised by the employer was whether the provision of the Act that states that the parties must attempt to conclude a new Collective Agreement with the assistance of a conciliation officer or mediator for at least 30 days during the period of the strike or lockout, means 30 days before the expiration of the 60-day period, or 30 actual days of conciliation.
This section also provides that if a determination of bargaining in bad faith is made, then the strike or lockout is immediately terminated and the Board or Arbitrator will impose a Collective Agreement. However, a Collec-tive Agreement imposed under this section is effective for a period of only one year from the expiry date of the old Collective Agreement, or for any longer period the parties may agree to. In practical terms, if one of the parties does not agree, the Collective Agreement imposed under this section would expire very shortly after the provisions are settled.
The legislation provides for the Manitoba Labour Management Review Committee to review the operation of this provision and provide a report to the Minister set-ting out their findings. It is expected that these concerns will be raised in that forum.
Damages Awarded to Union for Wrongful Strike
The employer, Versatile, was a Winnipeg farm imple-ments company that operated with varying degrees of profitability for almost 50 years. The workforce was over a thousand at its peak, but had been a small as 70. At the material time, the number of active employees not on layoff was about 250.
As a result of an anti-competition ruling against the parent company (New Holland) in the United States, the Winnipeg operation had to be sold. There was no ready buyer, and the employees began to investigate taking over the operation. Buhler, a high profile local business opera-tor, then expressed interest as it had been his boyhood dream to have a tractor company. Initially he was re-buffed, but after lobbying and intervention with the vari-ous government agencies in both Canada and the U.S., including efforts by former Winnipeg M.P., Lloyd Ax-worthy, Buhler's bid was accepted as an eligible buyer by the U.S. Justice Department..
Inter alia, the terms of purchase included transfer of the $32 million balance of an interest-free Canadian gov-ernment loan, and payment holiday until July 2003, top up of the pension fund by the vendor company and sever-ance funding for salaried employees by the vendor. Buhler became the successor employer, with a collective agreement with the CAW which expired in September 2000.
The parties commenced bargaining at the end of September 2000. In the first bargaining session, Buhler arrived alone, made comments to the effect that the Union would not like his proposals, that his first offer was al-ways his last offer, that the Union's on-site committee chair was "out of a job" and that if Buhler was backed into a corner, he would padlock the doors.
At the outset, the Employer demanded concessions, including no limit on out-sourcing, settlement of all out-standing grievances without any court proceedings, adop-tion of the Buhler benefits plan (drastically inferior to the Versatile plan in place at the time of the sale) and elimination of the CAW education and health fund. The owner, Buhler, was the only management representative at the Table.
In subsequent bargaining sessions, the Employer's position became worse from the Union perspective. In-formation was requested from the Company, but not eas-ily provided. Buhler insisted that the Employer be unfet-tered in appointing employees to positions, effectively eliminating the job security and seniority provisions of the collective agreement. Later Buhler would suggest status quo in this area, except for a letter of understanding.
The Employer also advised that there was another company that was interested in the operation, he could sell the business, and the jobs would leave Winnipeg. Further, he reminded the union that he owned land in North Dakota, and could easily move the operation there.
By the end of October the Union had a strike man-date of 96.8 percent. Buhler said he couldn't have a strike because the business was losing money. He wanted to address the bargaining unit employees directly. The Un-ion denied this request. At a bargaining session on Octo-ber 31st, 2002, the Union attempted to sort out non-monetary issues and reach some agreement on those. Limited progress was made. The Union representative expressed frustration that the parties were moving back-ward. Buhler said "Do what you got to do, but do you think walking will get you more money, then try me, just try me."
A further bargaining session was held November 2, 2000. As the parties appeared to be at an impasse, a strike was called November 3, 2000. In a telephone conversa-tion, Buhler conveyed his position to the Union, and it was unchanged. There was a discussion of other mecha-nisms to settle the strike including arbitration, mediation and conciliation. Buhler's stated concern about these pro-cesses was cost.
Subsequently there were infrequent meetings with a Department of Labour Conciliation Officer, appointed by the Minister. None of these brought the parties "face to face".
In January, the strike was still underway. The Em-ployer received a call from the vendor company advising that it was exercising a 60 day "labour interruption clause" to terminate an agreement with Buhler to produce a certain piece of equipment. The production of this equipment would be moved to Fargo, North Dakota. Ap-proximately 40 striking employees had done this work in the past and it was agreed that the loss of this contract would be very injurious to the viability of the plant.
During this conversation, the Employer's representa-tive struck a deal to sell $10 million worth of inventory to the parent vendor "at cost". He testified that he did this to minimize the inevitable losses caused by this cancellation. He did not seek to exercise a clause in the same contract which gave Buhler 10 days to cure the failure to deliver tractors and parts to the parent company. The Employer advised the conciliation officer of this development, but not the Union.
Three days later, the Employer sent a letter saying that the "offer" to arbitrate was withdrawn. At this time, the Union became aware that the production contract with the parent company had been cancelled.
There were no further meetings until March, when the union ended the strike and national representatives of CAW attempted to re-activate bargaining. They were told by a Company representative that nothing could salvage the plant. The company immediately locked out all of the unionized employees. A mediator was appointed, but was unsuccessful in bringing the parties to any kind of settle-ment.
The unfair labour practice hearing at the Board lasted 12 days in total. In reviewing the events which transpired, the Manitoba Labour Board concluded that the Union modified and withdrew proposals, consistent with good faith bargaining. However the Employer "...offered less each time they met and failed to provide, as re-quested, information in relation to its proposals."
The issue for the Board was whether if the employer was bargaining in good faith. The Board reviewed the jurisprudence and commented on the deliberate tabling of inflammatory positions, and unexplained sudden changes of position. The Board focused on whether the Employer was trying to avoid reaching a collective agreement. The panel was satisfied that Buhler's tactics went beyond "hard bargaining", as they included constant threats of plant closure, bait and switch strategies, and an about face regarding seniority provisions.
The Employer's proposals were found to be a "mov-ing target" and Buhler was described by the Board as "bullying" the Union.
The Board found the actions of the Employer caused the strike and that the Union did not have any other op-tions available. The conduct of the employer contravened the duty to bargain in good faith and make reasonable efforts to enter into a collective agreement as required by the Labour Relations Act.
The defence that the Employer had offered to go to Arbitration was rejected as the strike had already begun before this "offer" was made. And, the panel noted that Buhler rejected the Union's offer to go to mediation. The panel did not accept Buhler's suggestion that somehow the conciliation officer and mediator were remiss in their duties. The Board also noted the timing of the call from the parent company cancelling a production contract, and the failure of Buhler to try and cure it within 10 days, and drew the conclusion that Buhler did not want a collective agreement and committed an unfair labour practice The Board reviewed the law on disclosure during bargaining as well
Following its finding that an unfair labour practice had occured, the Board allowed a request by the parties that they be permitted to attempt to craft their own reme-dies. When this failed, the Board determined the remedies as set out in Order 1234, dated June 7, 2001. The reme-dies ordered by the Board included:
1) A cease and desist order in relation to any action which contravened the duty to bargain in good faith.
2) The parties were ordered to commence collective bargaining immediately.
3) The Employer was required to withdraw its pro-posal regarding withdrawal of all pending griev-ances.
4) The Employer was required to provide proposals with full and accurate disclosure, including those related to outsourcing, transfers and bumping.
5) The Employer was required to withdraw its "super seniority" proposal relating to the return to work agreement. (Since there were now fewer jobs, the Employer wanted to cherry pick who could return.)
And, since the Board was satisfied that the actions of the Employer precipitated the strike, additional remedies to-taling more than 6 million dollars were ordered in favour of the union and the employees:
6) Lost wages to employees for the period of No-vember 23, 2000 to March 26, 2001, exclusive of monies earned and strike pay.
7) The expired collective agreement was deemed to be in effect until March 26, 2001.
8) The Employer was required to pay the Union for costs of the strike, i.e. benefit continuation, trailer rental, utilities and portable toilet rental and ser-vices.
9) The Employer was required to pay interest at prime on all monies payable under the Order from No-vember 3, 2002 to March 26, 2001.
The Board did not award legal costs or witness fees to the Union.
A subsequent application by the CAW regarding the lockout, together with an application to name company officers as parties to the Unfair Labour Practice, was withdrawn after a comprehensive settlement was reached with the company, resulting in over 17 million dollars being paid to the CAW and the employees.
Buhler Versatile Inc. (Re) and CAW Local 2224 Case No. 220/01/LRA (Manitoba Labour Board), July 7, 2001. (QL Cite: [2001] M.L.B.D. No. 9).
Counsel for the Union: Garth Smorang Q.C., Myers Weinberg Kussin Weinstein Pollack (Winnipeg) gsmorang@myersfirm.com.
NEW BRUNSWICK
Clear, Cogent and Convincing Evidence Required in Assault Allegation
In Carleton Kirk Lodge, Saint John, NB, a resident atten-dant in a nursing home was accused of physical and sex-ual assault of a resident. The arbitrator upheld the griev-ance and reinstated the grievor because the evidence pre-sented by the employer fell short of being clear, cogent and convincing. There was no physical evidence to sup-port heresay statements. The resident did not testify and there was no real way to corroborate her story.
The arbitration board defined the standard of proof as follows:
"While the civil standard of proof of "balance of prob-abilities" applies in these matters, it is more stringent in the sense that it must be applied in a more exacting way. In discharge cases where criminal activity of this sort is alleged, the Arbitrator(s) must have clear, co-gent and convincing evidence. A standard of "reason-able probability" is referred to. Certainly, the more se-rious or reprehensible the alleged conduct, the more stringent the test. One can hardly imagine more seri-ous or reprehensible conduct than the one alleged here."
Then the arbitration board defined the type of evidence needed to support discharge in this kind of case:
"This Panel has no issue with the proposition that due to the clientele in care homes, be they for the elderly, the physical or mentally challenged, or requiring of special care in any other way, Employers have special obligations to not tolerate any behaviour that jeopard-izes the safety, security and sense of well-being of their very vulnerable residents. Many Arbitrators have commented, and we agree, that while Arbitrators will look for mitigating factors and will examine the possi-bility of rehabilitation in other domains, such options are not normally available where there is pa-tient/resident abuse. Employees in the care business are held to a high standard of behaviour, and trans-gressions not often forgiven."
But this high standard imposed on the employees also imposes a high standard on employers, in that if an em-ployer is to allege this type of behaviour, the employer must be able to prove it clearly, cogently and convinc-ingly. Its investigation must be careful and organized. Its evidence must be difficult to counter. And the more seri-ous the allegation, the clearer must be the evidence. While residents are vulnerable, so are staff if unsubstantiated allegations are made which cannot be proven. One can hardly imagine a career caregiver obtaining employment in the field if terminated under such a cloud.
NBGEU Local 5 and Carleton Kirk Lodge decision of arbitration board chaired by Robert Basque, Q.C., unreported, December 5, 2001.
David Brown, bms@nbnet.nb.ca, counsel for NBGEU.
CN and Entrop Revisited
Arbitrator Michel Picher is being asked to revisit the issue of the limits of a drug and alcohol testing policy, this time in the context of sawmill operations. In May of 2000 J.D. Irving, Limited, Sawmills Division, introduced a Policy on Alcohol and Other Drug Use applicable to all of its sawmills throughout New Brunswick. The CEP filed a grievance in respect of the policy and the parties agreed to Michel Picher to chair the arbitration board hearing the case.
Meanwhile, in July of 2000, Mr. Picher issued his decision on the application of such a policy in the Cana-dian National Railway Company. In light of the CNR decision, and the Ontario Court of Appeal Decision in Entrop, J.D. Irving and CEP held a series of meetings to consider changes to the policy at the sawmills.
In early December 2001, J.D. Irving introduced an amended policy. It changed the definition of a "safety sensitive position" to the same wording as in the CN case, removed any reference to "random drug testing", intro-duced "random alcohol testing", as addressed in Entrop, and acknowledged an "accommodation responsibility" with respect to any policy violations.
The amended policy was subject to arbitration and the matter has been put before Mr. Picher. A number of important questions relating to the content and application of the policy are in issue. The Union has challenged the definition of "safety sensitive position" put forward by Irving as being unreasonable in this particular work con-text. The CEP takes the position that a safety sensitive position should be limited to those instances where the employee has no direct supervision or very limited super-vision available to provide frequent operational checks. If the company's position is upheld, the policy will have a far broader application. The other key issues very much involve the "edges" of the policy.
This case will be decided in all likelihood, on the basis of Picher's consideration of his own decision in CN, as modified by the principles established by the Ontario Court of Appeal in Entrop. The decision is expected be-fore Summer, 2002.
CEP Sawmill Locals v. J.D. Irving Limited, Sawmill Division.
Robert Breen (rbreen@labour-law.com) Counsel for CEP.
Court to Rule on Scope of Guarantee under Employment Security Provision
CEP Local 689 is taking judicial review of a recent arbi-tration decision involving the employment security of employees at a mill in the town of Miramichi. CEP Local 689 is the bargaining agent for the mill employees of UPM Kymmene in Miramichi. In the last round of bar-gaining, the Union and the company entered into an em-ployment security provision which provided, with limited exceptions, that all employees within the bargaining unit "at the date of signing of the collective agreement will retain their employment at the mill …".
In 2001 UPM imposed a restructuring which in-volved layoffs, and the restructuring was, by admission of all parties, not an exception to the application of the em-ployment guarantee. The question for the Arbitrator was the nature and scope of the protections afforded by the guarantee.
The employer claimed that the employment security provision was, consistent with pattern bargaining in 1994, negotiated only to ensure employees would maintain their
employment status for the life of the collective agreement, not their jobs. The union argued that this would permit
UPM to literally lay off all of its production employees for the entire term of the collective agreement so long as they maintained security of their employment relation-ship.
Professor Bladon, chair of the arbitration board, ac-cepted the interpretation put forward by the employer. He concluded that while the employer's position would re-quire an amendment to the collective agreement to insert the word "status" following "employment", the Union had failed to discharge the onus it bore in the case. The Arbi-trator found the employer's interpretation did provide a meaningful benefit to employees in the bargaining unit at the time the collective agreement was signed as it ex-tended their right of recall for the term of the collective agreement.
This matter has been put forward to judicial review and will be heard before the Court of Queen's Bench in February 2002.
CEP Local 689 v. UPM, unreported, October 2001 (Bladon).
Robert Breen (rbreen@labour-law.com) Counsel for CEP.
NEWFOUNDLAND
New Wage Protections in Labour
Standards Act
The Newfoundland House of Assembly is considering legislation which will significantly improve labour stan-dards protection for non-union workers in the province. The amendments to the Newfoundland Labour Standards Act would, among other things, require employers to pro-vide a statement of terms and conditions of employment to employees, increase the maximum notice of termina-tion of employment from 2 to 6 weeks, improve minimum
vacation benefits and give priority to $2,000 of unpaid wages, per employee over all other creditors in the event an employer goes bankrupt. Importantly, the reforms also make corporate directors individually and collectively liable for the unpaid wages of employees.
The amendments to the Labour Standards Act also contain a provision allowing for the reciprocal enforce-ment of orders for the payment of wages that are issued by Courts in other provinces. The changes are currently under review by a committee of the Legislature before being returned for third reading and Royal Assent.
Bill 54, An Act to Amend the Labour Standards Act,
Third Session, 44th General Assembly, 50 Elizabeth II, 2001.
NOVA SCOTIA
CLAC Fails in Bid for Certification as a Construction Trade Union
The Christian Labour Association has failed to gain certi-fication in the construction industry in Nova Scotia. The province's Supreme Court has upheld a decision of the Labour Relations Board of Nova Scotia which dismissed an application for certification by CLAC.
In March, 2000, CLAC applied for certification as bargaining agent for three alternative bargaining units: a unit of labourers, a unit of operating engineers, and a wall-to-wall bargaining unit of all employees of Ledcor. Ledcor was active in Nova Scotia at the time laying un-derground fiber optic cables. The Mainland Nova Scotia Construction and Building Trades Council, as well as other construction trade unions, intervened in opposition to CLAC's applications. The intervenors alleged that CLAC did not constitute a "construction trade union" as that is defined in the Trade Union Act of Nova Scotia. The Construction Industry Panel of the Labour Relations Board agreed with the intervenors and dismissed CLAC's applications on the basis that CLAC did not fall within the definition of construction trade union in the Trade Union Act.
CLAC filed an application for certiorari in the Nova Scotia Supreme Court to quash the decision of the Con-struction Industry Panel. The application was heard in July, 2001, and the Nova Scotia Supreme Court issued its decision in January, 2002. The Nova Scotia Supreme Court dismissed CLAC's application for certiorari on the basis that the findings of the Panel were not patently un-reasonable.
Christian Labour Association of Canada v. Labour Relations Board (N.S.) et al, 2001 NSSC 002.
Ron Pink (rpink@labour-law.com) and Gordon Forsyth (gforsyth@labour-law.com), Counsel for the Mainland Building and Construction Trades Council.
Court of Appeal Considers Appropriateness of Injunction Preventing Application of Union's Internal Discipline Process
The Nova Scotia Court of Appeal recently heard argu-ments on a case that could have significant impact on how trade unions govern their internal affairs.
In July, 2001, IBEW, Local 625 issued a letter to its members which advised them that they were not cleared to work on the Oil Rig Eirik Raude, unless it was for an employer who was bound by the collective agreement between the IBEW, Local 625 and the Construction Man-agement and Labour Bureau, the agency representing unionized employers in the construction industry.
Three employees of the Halifax Shipyard, which had the contract to perform work on the Oil Rig, were disci-plined by IBEW, Local 625 as a result of their work on the Oil Rig without the permission of Local 625. The Halifax Shipyard, the Marine Workers, who represented employees of the shipyard, and the individual employees applied for an injunction to prohibit the IBEW, Local 625 from imposing discipline or otherwise refusing to clear its members to work on the Oil Rig. In September, 2001, the Nova Scotia Supreme Court granted the injunction.
In the meantime, the Union had agreed to clear any-one who had a pre-existing contractual relationship with the Shipyard to work on the Oil Rig. At the injunction hearing, however, the Union maintained that it had the right to advise its members who had no contractual em-ployment relationship with Halifax Shipyard to not work the Shipyard. The issues that went on appeal to the Court of Appeal were whether a trade union can direct its mem-bers to not work for a particular employer and punish them if they act in violation of the order. Argument was heard on January 15, 2002. The Nova Scotia Court of Appeal reserved its decision.
Fern Tardiff and IBEW Local 625 v. Halifax Shipyard et al, S.H. No. 174189; appeal from Industrial Union of Marine and Shipbuilding Workers of Canada, Local 1 v. IBEW Local 625, 2001 NSSC 148.
Ron Pink (rpink@labour-law.com) and Gordon Forsyth (gforsyth@labour-law.com), Counsel for Fern Tardiff and IBEW Local 625.
Struggling to Maintain the Right to Strike in the Health Care Sector
The big news outside the Courts in Nova Scotia has been the struggle between the public sector unions involved in the delivery of health services and the provincial govern-ment over new collective agreements for the workers. The Nova Scotia Government and General Employees Union ("NSGEU") and the Nova Scotia Nurses Union ("NSNU") bargained for months on behalf of nurses and other health workers in the acute care sector. When bar-gaining neared an impasse, the government intervened. It introduced Bill 68, a piece of legislation which, among other things, eliminated the right of health workers to strike and gave the government the right to impose terms of the new collective agreement.
That led, in turn, to mass demonstrations and an il-legal strike by nurses and health workers represented by the NSGEU. The confrontation ended when the province agreed not to proclaim the Bill and the Unions agreed to binding arbitration by final offer selection.
In the arbitrations that followed, nurses were given wage increases of 17% over three years, the proposal put forward by the Unions. The arbitrator selected wage of-fers by the Employer for licensed practical nurses and other health care workers.
The provincial government is sticking to plans to in-troduce essential services legislation that would curtail the right to strike in certain parts of the public sector. The Unions have refused to co-operate in public hearings in
advance of this legislation. A further confrontation is ex-pected during the spring sitting of the Legislature.
NSGEU and NSNU v. Province of Nova Scotia, unreported, Au-gust 13, 2001 (Ashley).
Ron Pink (rpink@labour-law.com), Ray Larkin (rlarkin@labour-law.com, David Roberts (droberts@labour-law.com and Gail Gatchalian (ggatchalian@labour-law.com), Counsel for the Nova Scotia Government and General Employees' Union and the Nova Scotia Nurses Union.
NORTHWEST TERRITORIES
Does NWT Education Act Provide for an Absolute Right to Arbitration?
Denise Lebelle was hired as a teacher by the Yellowknife Public Denominational District Education Authority in August 1999. She became a member of the Northwest Territories Teachers Association (NWTTA) and taught for the 1999/2000 school year.
She received a positive appraisal which was en-dorsed by the district superintendent. At the same time she received a letter from the superintendent saying her contract would not be renewed because of staffing uncer-tainties. Under the Education Act, teachers can be termi-nated at the end of a school year with written reasons. However, Lebelle was also told that the notice was a for-mality and she could expect to be rehired for the Fall.
Weeks later, a principal who had participated in the positive appraisal told her there were concerns about her performance and she would not be re-hired. The union filed a grievance on her behalf alleging the appraisal pro-cedure the collective agreement was not followed. The Superintendent denied the grievance saying that the non-renewal letter complied with the Education Act.
Lebelle's next step was to put the matter before the grievance committee. This committee is comprised of four people, two chosen by the employer and two chosen by the bargaining agent (NWTTA). If the committee can resolve a dispute the matter ends there. If the committee cannot reach a resolve, the matter goes to arbitration. However, if the committee reaches a unanimous decision, that decision is final and binding.
The grievance committee dismissed Lebelle's griev-ance unanimously, saying the Superintendent had fol-lowed procedure when she was terminated in the Spring. The onus was on Lebelle to apply for positions if she wanted to return in the Fall, and she had not.
Since the Collective Agreement between the parties said that if the grievance committee dismissed a grievance unanimously, the decision was final and binding, the NWTTA would not proceed any further with the griev-ance.
Lebelle retained private counsel and filed an applica-tion in court to have her grievance referred to arbitration. Lebelle relied on the following section of the Education Act:
57. Where a dispute arises concerning the dismissal from a contract of employment between a teacher the education body employing the teacher, the dispute may be determined by means of arbitration under the Arbitration Act.
To understand why Lebelle's application was made to the courts, it is necessary to understand the interplay between the Education Act and the NWT Teachers Asso-ciation Act.
The legislative framework in the Education Act cre-ates a two tier system for appointment and termination of teachers. Those in the first two years of employment are on year long contracts and can be terminated for cause or incompetence, or at the end of the school year. After two years, a teacher can only be terminated for cause. Any dismissal can be disputed and referred to arbitration.
The Northwest Territories Teacher's Association Act grants the bargaining rights to the Association. This Act is silent on collective agreement language and there is no requirement for or deemed included language for dis-pute resolution.
Lebelle's collective agreement did have griev-ance/arbitration language. A tenured teacher (more than 2 years service) could refer the dispute directly to a three person arbitration board of reference. A non-tenured teacher (less than 2 years service) like Lebelle had to refer the grievance to the grievance committee first.
When Lebelle made her court application it was not an application for judicial review. Rather, she applied to the court to have her grievance referred to arbitration. She argued that the "termination" in the Spring had actually been a dismissal and the matter should be placed before an arbitrator for a hearing. Before considering whether it was a termination or a dismissal, the Court defined the issue this way: Does the Education Act give an absolute right to go to arbitration?
Reading the Act and the collective agreement to-gether, the Honourable Judge J.Z. Vertes was not willing to find there was an absolute right to go to arbitration. In the decision, the judge relies on the use of the word "may" in s. 57 of the Education Act (supra) and says this can not support a mandatory arbitration right. Further, the court said that the collective agreement scheme was fair and consistent with the related statutory framework be-cause both the employer and union sat on the grievance committee.
In finding that Lebelle was terminated and not dis-missed, the judge noted that the statute placed tenured and non-tenured teachers on two tiers, and found that dis-missal was primarily for tenured teachers. Therefore, he distinguished Lebelle's situation and found it was a ter-mination at the end of the year of a non-tenured teacher. A non-tenured teacher could not have an absolute right to arbitration.
The judge also noted that this was not an application for judicial review, and in the view of the Court, the ap-plicant was trying to do an end run around the grievance committee.
Authorities Considered: NWT Education Act, NTA Act, Canada Labour Code, NWT Public Service Act, Jacmain Principle.
Reported As: Lebelle v. Yellowknife Public Denominational Dis-trict Education Authority
Postscript: Lebelle moved to Alberta during these proceedings and secured a teaching position at a lower rate of pay. There is no mechanism for the member to bring a duty of fair representa-tion complaint against the bargaining agent under the territorial legislation, however the
Canada Labour Code can be used. CALL member Austin Mar-shall of Marshall & Company in Yellowknife represented Lebelle. He can be reached atamarshall@marshall.yk.com.
ONTARIO
Changes to the Employment Standards Act
The Employment Standards Act, 2000 (ESA) and its regu-lations came into force on September 4, 2001. The new Act means a real loss in protections for employees and additional burdens for unions. "Highlights" of the new Act include:
· Fewer restrictions on hours of work
· Abolished permit system for excess hours and sub-stituted agreement system
· Weak new protections against employer reprisals
· Definition of work week: seven consecutive days
· Excludes unionized workers from the remaining protections to a greater degree than the previous legislation.
· Wide regulation-making powers including the power to further raise the now 60 hour work week
While the new Act maintains the base rule of 8 hours/day, 48 hours/week, the employer and employee may "agree" to extend the week up to 60 hours without any control mechanism or supervision by the Ministry. Employees may further "agree" to have their overtime averaged over four weeks. Meal times may be broken up under the new Act. The new Act restores a medieval practice of allowing an employer to make somebody work for free as long as the person is still training.
Enforcement in the non-unionized work-place may well be a thing of the past because of extensive lay-offs of employment standards officers. Enforcement in the union-ized workplace has become entirely the responsibility of the union and complaints go to arbitration. This means much better protections for unionized employees, but also additional costs for unions.
Court of Appeal Upholds Concurrent Jurisdiction of Arbitrator and Human Rights Board of Inquiry
Mr. Naraine, who immigrated to Canada from Guyana in 1967, was hired as an electrician at Ford Motor Co. for a period of nine years until his discharge in 1985. During the last three years of his employment, he received five disciplinary actions. His union initiated three grievances in response, and Mr. Naraine initiated two complaints of racial discrimination and harassment to the Ontario Hu-man Rights Commission, one before his discharge, and one immediately thereafter.
The arbitrator dismissed two of the grievances and upheld his discharge in 1985. However, in 1996, a Board of Inquiry found that Mr. Naraine was the subject of in-tense and prolonged racial discrimination and harassment within a poisoned work environment, which provoked his outbursts of anger in the workplace. The Board of Inquiry ordered his reinstatement, as well as special damages for lost wages and benefits up until his reemployment else-where, general damages of $30,000, and recommended the development of policies and training to address racism in the workplace. An appeal to the Divisional Court was dismissed.
The issue before the Court of Appeal was not to re-view the finding of systemic discrimination, but to deter-mine whether the arbitration award should affect the ju-risdiction and power of the Board of Inquiry to grant the remedy of reinstatement in light of cases such as the Su-preme Court of Canada ruling in Weber v. Ontario Hydro. The Court found that the arbitrator did not have the au-thority in 1986 under s. 48(12)(j) of the Labour Relations Act to apply human rights legislation, and the Commis-sion did not have the authority under s. 34(1) of the Hu-man Rights Code to refer a human rights complaint to another forum. Further, the essential character of the dis-putes before the arbitrator and the Board of Inquiry were separate and distinct: the first was discipline and dis-charge, and the second was racial discrimination and har-assment. The Court held further, that despite Weber, where the subject matter of a grievance might also be the subject matter of a human rights complaint, there is now concurrent jurisdiction under the Act and the Code. Ques-tions of jurisdiction should be determined on the circum-stances of each case, reasonableness of the union's con-duct, the nature of the dispute, and the desirability of fi-nality and consistency of result.
With respect to res judicata or issue estoppel, the Court found that two preconditions were not met, i.e., the legal questions before the arbitrator and the Board of In-quiry were not the same, and neither were the parties.
The Court upheld the legal reasoning and remedial relief of the Divisional Court and the Board of Inquiry, except with respect to reinstatement. The Court found that due to the 11-year delay and deference to the arbitrator's findings of fact, Ford's obligation to Mr. Naraine ended when he obtained employment elsewhere, and reinstate-ment under the circumstances was therefore inappropri-ate.
Ford Motor Co. of Canada v. Ontario (Human Rights Commis-sion), [2000] O.J. No. 3368 (C. A.), rev'g [1999] O.J. No. 2530 (Div. Ct.), rev'g (sub nom. Naraine v. Ford Motor Co.) [1996] O.H.R.B.I.D. No. 43, aff'g [1996] O.H.R.B.I.D. No. 23.
Mark Hart (mhart@sansonandhart.com) and Geri Sanson (gsan-son@sansonandhart.com) for the respondent Mike Naraine.
Naomi Overend naomi.overend@ohrc.on.ca and Prabhu Rajan (e-mail not known) for the respondent The Ontario Human Rights Commission.
CUPE v Min. of Labour for Ontario goes to the Supreme Court of Canada
The decision of the Ontario Court of Appeal in CUPE v Ministry of Labour for Ontario (2000), 51 O.R. (3d) 415 raised considerable interest amongst both labour lawyers and administrative lawyers when it was released in 2000. The Ministry sought and obtained leave to appeal to the Supreme Court of Canada this past September, and the case has continued to garner the attention of industry players.
The National Academy of Arbitrators (Canadian Region) sought leave to intervene in the case, as did the Canadian Bar Association, with approval of both its Na-tional Labour Executive and National Administrative Law Executive. On January 11, 2002 the Supreme Court granted both the CBA and the National Academy of Arbi-trators leave to intervene.
The case involves interest arbitration in the hospital sector in Ontario and a new process adopted by the Minis-ter of Labour for the appointment of persons to act as chairs of boards of interest arbitration under the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H. 14 ("HLDAA"). Following the enactment of the Public Sec-tor Transition Stability Act, 1997 ("Bill 136"), the Minis-ter of Labour fundamentally altered the process by which persons are appointed to sit as chairs of boards of interest arbitration under HLDAA. Under the established process, the vast majority of persons appointed to sit as chairs of boards of interest arbitration were chosen from a roster of arbitrators - the few appointees who were not from the roster were persons known for their expertise in labour relations and their mutual acceptability to the parties.
The Minister dispensed with that process, and fun-damentally altered the system by identifying retired mem-bers of the judiciary who would be interested in being appointed to interest arbitration boards. The Minister's office compiled a list of retired judges to act as chairs of boards of interest arbitration under HLDAA, and were clear that experience in labour relations "was not an issue", experience in the health care field "was not an issue", and experience in interest arbitrations "was not an issue".
On February 20, 1998, four "retired judges" who were not on the roster were appointed to chair boards of arbitration to resolve a number of collective bargaining disputes at Ontario hospitals. They all declined to accept those appointments or ultimately declined to act. Nonetheless, the Minister subsequently personally appointed a number of other retired judges, none of whom are on the established roster of arbitrators, to sit as chairs of boards of interest arbitration under HLDAA involving both SEIU and CUPE. There is no longer a roster system or rotation; the appointments are made solely at the Minister's discretion.
CUPE and SEIU brought an application for judicial review of this new appointment process claiming that, in altering the appointment process and in the manner in which he exercised his appointment power, the Minister interfered with the institutional independence and impar-
tiality of HLDAA boards of arbitration, contrary to the requirements of natural justice. CUPE and SEIU also al-leged that the Minister had breached their legitimate ex-pectations in that he failed to keep a commitment by the Government to continue to use the prior system of ap-pointments.
The appeal raises extremely important issues for administrative justice and the rule of law, both of which are key interests of the bar across the country, including:
· institutional independence
· the respective independence and expertise of arbi-trators and retired judges;
· the proper scope of review of ministerial discretion;
· procedural fairness; and
· the law of legitimate expectations with respect to the form and matter of dispute resolution.
The case will likely be heard in the Fall, 2002.
Howard Goldblatt (howardgoldblatt@sgmlaw.com), Steven Barrett (stevenbarrett@sgmlaw.com) and Ethan Poskanzer (ethanposkanzer@sgmlaw.com) for CUPE and SEIU.
Susan Philpott (sphilpott@ksokieminsky.com), Graham William-son (gwilliamson@koskieminsky.com), Jeff Cowan and Gregory Richards for Canadian Bar Association.
Michel Picher for the National Academy of Arbitrators.
Bill 110 becomes Law
The Quality in the Classroom Act, 2001 was introduced in October, 2001 and received Royal Assent on December 12th. In this Act, teachers are subjected to Ministry-administered entry exams, mandatory "learning plans" and regular performance appraisals that could lead to dismissal if unsatisfactory. The appraisals are to take place every three years or earlier for new teachers or teachers who have changed boards. The Ontario Teachers' Federation has refused to assist with the government's teacher testing plans on the following grounds:
· Entry to profession tests for teachers have no re-search-based links to improved performance for teachers or students.
· ETS has a limited understanding of the current training, standards and evaluation of teacher candi-dates in Ontario.
· After the first year, teacher candidates will have to pay to take this test.
· Timelines are unrealistically short.
· In spite of advice from the developers, the Gov-ernment has decided this first year's test will count.
· The standardized nature of these tests has been shown by research to be culturally biased and sys-temically discriminatory.
The Bell Pay Equity Saga Continues
In this seemingly endless pay equity saga (the complaints were filed in the early 90s), Bell Canada continues to play for time and female employees continue to be left with a discriminatory pay structure. The latest twist in a long story of delays occasioned by Bell is a successful applica-tion for leave to appeal in the Supreme Court of Canada. The basis of Bell's case is an allegation that a regulation-making power vested in the Canadian Human Rights Commission interferes with the institutional impartiality of the Tribunal and that the tenure provisions for tribunal members are not sufficient to guarantee independence.
Both arguments were resoundingly rejected by a unanimous Federal Court of Appeal, and for good reason. The power to make guidelines was last exercised in 1986 and it is difficult to see how this could interfere with complaints being adjudicated in the years between 1995 and the (possibly distant) future. The tenure provisions are better than for most federal tribunals and even Federal Court judges do not enjoy better protection. It is regretta-ble indeed that the highest Court has lent its assistance to this game of delay, defer, postpone. From Bell's perspec-tive, delay makes business sense: tribunals do not, as a general rule, award compound interest, so every day's delay means a real loss to the employees. Also, as a result of extensive corporate restructuring, the bargaining units in question shrink more and more - and there will therefor be fewer employees to benefit from an ultimate award.
Canadian Human Rights Commission v. Bell Canada
Larry Steinberg, counsel for CTEA (lsteinberg@koskieminsky.com).
Peter Engelmann, counsel for CEP (pengelmann@ceglaw.com).
Andrew Raven, counsel for CHRC.
Supreme Court of Canada Upholds Freedom of Association
On December 20, 2001 the Supreme Court of Canada released its decision in Dunmore v. Ontario (Attorney General). This case dealt with whether the exclusion of agricultural workers from a statutory labour relations re-gime infringed the right to freedom of association under s. 2(d) and the right to equality as set out in s. 15(1) of the Canadian Charter of Rights and Freedoms (the "Char-ter").
The facts are relatively straightforward. In 1994, the NDP Government in Ontario enacted the Agricultural Labour Relations Act, 1994 ("ALRA"), which extended trade union and collective bargaining rights to agricultural workers. Prior to this legislation, agricultural workers had always been excluded from Ontario's labour relations statutes. The ALRA extended collective bargaining rights to agricultural workers. The ALRA provided for a form of interest arbitration as the dispute resolution mechanism but did not extend the right to strike to agricultural work-ers in Ontario.
Approximately one year later, the Harris Govern-ment was elected and repealed the ALRA in its entirety. This had the effect of re-subjecting agricultural workers to the traditional exclusion contained in the more general Labour Relations Act. The legislation repealing the ALRA also terminated any proceedings, certifications, or collec-tive agreements made under the ALRA. The Appellants (individuals workers, union organizers, and the UFCW) brought an application challenging the repeal of the ALRA and the exclusion of agricultural workers from the Labour Relations Act on the basis that it infringed their rights under s. 2(d) and s. 15(1) of the Canadian Charter of Rights and Freedoms.
Both the Ontario Court (General Division) and the Ontario Court of Appeal upheld the challenged legisla-tion.
In a rather surprising 8-1 decision, the SCC allowed the appeal and declared the impugned legislation uncon-stitutional because it violated the freedom of association contained in s. 2(d) of the Charter. The majority of the Court did not consider whether the Government's actions also infringed equality rights under s. 15(1) of the Char-ter. In terms of remedy (which will be discussed in greater detail below) the SCC struck down the clause ex-cluding agriculture workers from the Labour Relations Act. The Court then suspended the declarations of invalid-ity for 18 months to allow the Government time to pass amending legislation.
Obviously, this case represents a significant advance in the interpretation of the Charter vis-à-vis labour rela-tions and labour relations law. However, it is likely that this decision will be read narrowly and will not result in the wholesale inclusion in collective bargaining legisla-tion of previously excluded groups.
Application of section 2(d)
In its decision, the SCC went beyond the traditional for-mulation of freedom of association and added an addi-tional test which is:
"whether the State has precluded activity because of its associational nature, thereby discouraging the col-lective pursuit of common goals."
Therefore, the SCC has moved from protecting the asso-ciational rights of individuals (in the late 1980s and early 1990s) to extending Charter protection to activities that are inherently collective in nature, in that they cannot be performed solely by individuals acting alone.
This is an important distinction and a distinction that is helpful to the trade union movement generally. The Court has recognized the collective nature of trade unions and that trade unions develop needs and priorities that are distinct from those of their members individually. The Court also recognized that unions cannot function if the law protects only the lawful activities of individuals. The majority states at paragraph 17:
"The law must recognize that certain union activities - making collective representations to an employer, adopting a majority political platform, federating with other unions - may be central to the freedom of asso-ciation even though they are inconceivable on the in-dividual level."
The Majority then immediately states that not all such collective activities are protected by s. 2(d) of the Charter and in particular, the Court specifically excludes the right to strike and the right to collectively bargain from the protected ambit of s. 2(d).
The Appellants argued in this case that without some access to state protection, that they had no realistic chance of associating and forming a trade union. The majority recognized a distinction between groups who are "strong enough to look after their interests without collective bar-gaining legislation" and those "who have no recourse to protect their interests aside from the right to quit". Obvi-ously, agricultural workers were found by the Court not to have other recourse to protect their interests.
Section 1 Analysis
The Court then considered whether such an exclusion constitutes a reasonable limit on agricultural workers' freedom to organize under s. 1 of the Charter. Simply put, the majority of the Court did not find protection of the family farm or maintaining the agricultural sector's com-petitive position to be sufficiently important governmental objectives so as to override the right of agricultural work-ers to form trade unions.
In particular, the majority found that given that the effect of the exclusion was to deny the right of association to workers in every sector of agriculture and to deny every aspect of the workers' right to organize, the whole-sale exclusion of agricultural workers from the LRA is not a reasonable limit on freedom of association.
The Remedy
As in many of these constitutional cases, the right is in the remedy. Here, the Court gave the Government 18 months to remedy the unconstitutionality of the legislation. This means that the legislature has 18 months to decide what statutory protections to extend to agricultural workers.
The Majority of the Court comments at paragraph 67 on what the appropriate type of remedy may be and it is worth quoting this paragraph in full:
"This raises the question of whether s. 2(d) requires that a minimum level of LRA protection be extended to agricultural workers. As implied by Rodriguez, su-pra, the Charter only obliges the legislature to provide a statutory framework that is consistent with the prin-ciples established in this case, including both the s. 2(d) and the s. 1 analysis. In my view, these princi-ples require at a minimum a regime that provides agri-cultural workers with the protection necessary for them to exercise their constitutional freedom to form and maintain associations. The record shows that the ability to establish, join and maintain an agricultural employee association is substantially impeded in the absence of such statutory protection and that this im-pediment is substantially attributable to the exclusion itself, rather than to private action exclusively. More-over, the freedom to establish, join and maintain an agricultural employee association lies at the core of s. 2(d) of the Charter; the Appellants' claim is ulti-mately grounded in this non-statutory freedom. For these reasons, I conclude that at minimum the statu-tory protections judged essential to its meaningful ex-ercise, such as the freedom to assemble, to participate in the lawful activities of the association and to make representations, and the right to be free from interfer-ence, coercion and discrimination in the exercise of these freedoms. [Emphasis Added]
However, the Majority goes on to state at paragraph 68 that:
"In choosing the above remedy, I neither require nor forbid the inclusion of agricultural workers in a full collective bargaining regime, whether it be the LRA or a special regime applicable only to agricultural workers such as the ALRA. For example, the question of whether agricultural workers have the right to strike is one better left to the legislature, especially given that this right was withheld in the ALRA (s. 10)."
The Court's judgment leaves open the question of how much statutory protection is required. Given the length of time they have, it is likely that the Harris Government (or its successor) will enact new legislation. It would seem the bare minimum required by the SCC is to provide the right to organize, the right to have access to employer property, the right to be free from reprisals and perhaps the requirement that employers bargain in good faith with trade unions. It is doubtful that this Government would provide anything more than those minimums.
Therefore, while this case is an important step for-ward in the constitutional forum for trade unions and their members, it is not at all clear what this case will actually mean on the ground (or perhaps more appropriately, on the farm).
Dunmore v. Ontario (Attorney General) and Fleming Chicks 2001 SCC 94. File No.: 27216, released December 20, 2001.
Chris G. Paliare (chris.paliare@paliareroland.com) and Martin J. Doane (martin.doane@paliareroland.com) of Paliare, Roland, Toronto for the appellants.
SASKATCHEWAN
1. Saskatchewan Labour Relations Board Decisions
2. Court Decisions
3. Arbitration Awards
1. Saskatchewan Labour Relations Board Decisions
Liquor Store Managers In-Scope in Existing Bargain Unit - Turns out they were "Employees"
The Union brought an application to update the exclusion list in its certification. The dispute concerned the inclu-sion of the classification of "liquor store manager." The LRB had already determined that these managers did not perform essential work of a managerial nature, and as such were to be viewed as "employees" and covered by the Act. The Board had also previously decided that the liquor store managers could not be carved out as a sepa-rate bargaining unit, and had rejected an application by an association with that objective.
In this case, the issue for the LRB was whether it could grant the amendment to SGEU without proof of support from a majority of employees in this "add-on" group of liquor store managers. The application was op-posed by a representative of the managers who was granted intervenor status.
After reviewing the jurisprudence, the Board de-cided that it first must determine if the bargaining unit sought (with the inclusion) was a new bargaining unit. To do that it had to examine the type of bargaining unit that was established by the original certification order and determine its intended scope. The Board concluded that liquor store managers were included within the intended scope of the original "all employee" Order. They had been covered by an earlier certification order until they were excluded as a result of a change in the statutory definition of "employee" in a previous amendment of the Act.
In the end the Board decided it could proceed to grant the amendment without considering whether there was a majority support in the "add-on" group, having de-termined that there was majority support in the overall amended bargaining unit.
Saskatchewan Government and General Employee's vs. Sas-katchewan Liquor and Gaming Authority and Greensides [2001] S.L.R.B.R. 152.
Counsel for the Union: Rick Engel @ Gerrand, Rath, Johnson (Regina) rengel@gerrandrj.com.
Can IWA Voluntary Recognition Trump provincial Trade Union Act in Construction Sector? Labour Board says Employers don't have to Recognize Trades until Certificate in Place
Central Mill Construction and Westwood Electric (an-other Respondent) contracted with Weyerhaeuser in the construction of a new saw mill facility at Big River. Westwood and Central Mill entered into a voluntary rec-ognition agreement with IWA, which is not certified within Saskatchewan for either company. The IWA en-tered into a project agreement with the two construction companies, using employees from British Columbia for the most part. The Saskatchewan Building Trades Council became aware of the project and demanded that the work be performed in accordance with the collective agree-ments concluded under the framework of the Saskatche-wan legislation, being the Construction Industry Labour Relation Act ("CILRA"). That statute provided for a scheme of province-wide bargaining on a craft basis, with the traditional building trades unions being designated within trade divisions for all construction work.
The Applicant (Construction Council) filed a num-ber of unfair labour practices, essentially alleging that the parties to the construction project were in violation of the Trade Union Act and the CILRA. The Application said that "all employee" bargaining units are not permitted in construction, and according to an earlier decision of the LRB, the only unions that can perform construction work are the designated building trades along a craft basis.
In response, it was argued, among other things, that the two construction companies involved were not "unionized employers" within the meaning of the statute, since they had not been certified and were only granted voluntary recognition. Therefore, that did not bring them within the scope of the legislative scheme. The LRB re-jected the argument that the Applicant had no valid claim because the construction work was not organized along craft lines, rather on a "wall to wall" basis. The Board said that there is no dispute that this project was one of con-struction, and affirmed its long standing policy of recog-nizing appropriate units in construction along craft lines.
"The stabilization goal of accreditation laws would be compromised if the Board permitted 'wall to wall' bar-gaining in the construction industry".
However, the Board did place significance on the fact that the situation came about as a result of voluntary recogni-tion. It concluded that the agreements between IWA and the two construction companies did not have the affect of making the companies "unionized employers" within the terms of the CILRA. Thus, in relation to the Applicants Westwood and Central Mill stood in the same position as non-union contractors. On this basis the Board found that the two companies had not violated the legislation by en-tering into voluntary recognition agreements. Central Mill and Westwood could not be required to bargain through a representative employer's organization with the desig-nated building trades until they are certified or have a voluntary recognition agreement with one of the desig-nated unions. The application was dismissed.
Saskatchewan Provincial Building and Construction Trades Council vs. Central Mill Construction Ltd. et al and IWA (Canada), Local 1-417 [2001] S.L.R.B.R. 59.
Counsel for the Unions: Drew Plaxton for the Trades, Walker Plaxton (Saskatoon) walkerco@sasktel.net.
Ted Koskie for IWA, Koskie and Co. (Toronto).
Can a Labour Board Revoke a Bargaining Certificate if there is a Concurrent Application for Imposition of a First Collective Agreement? Saskatchewan Board says yes, but relies on the facts
UFCW was certified for a number of companies op-erating a hotel in Regina, on February 21, 2000. During the open period a year later, Mayer brought a resicission application (decertification). The Union alleged that the application was made contrary to the Act, as a result of influence or interference by the employer.
After certification, the parties had commenced bar-gaining for a first collective agreement. Bargaining did not go well and the Union alleged bad faith bargaining in an unfair labour practice application. The Union also filed an application to initiate the process for imposition of a first contract, as provided in Saskatchewan legislation. The Board heard the applications, but they were subse-quently withdrawn before a decision was issued.
The interesting twist to this case is that the Union and the Employer informed the Board at the commence-ment of the decertification application that they had reached a tentative first collective agreement, subject to ratification by the Union. The "resolution of matters" terms also included an agreement to withdraw the unfair labour practice, and the application for first contract. Notwithstanding these developments, Mayer
decided to proceed with the de-cert application. Consider-able evidence was lead with respect to the reasons for his application, and the Union tested the motivation of the Applicant.
In addition to the arguments made on the evidence of employer interference, the Union argued that the Board ought not to consider an application for rescission while the Union's application for assistance to conclude a first collective agreement was pending before the Board.
UFCW argued that consideration of a decertification application while first contract assistance is pending runs counter to the spirit and intent of the concept of assisting the parties to resolve their collective bargaining differ-ences without resort to strike or lockout, while exposing the Union to the risk of losing its collective bargaining rights.
The LRB was not satisfied that the application could be dismissed on the basis of employer interference. With respect to the second argument, the significance of the pending first contract application, the LRB extensively reviewed jurisprudence from other provinces, including the issue of whether a decertification should be allowed during a strike.
The Board relied on its discretion to consider that the true wishes of employees are to be respected, and therefore the Board can consider the timing and context of any application for rescission. The Board said:
"...if there is no discretion to dismiss a rescission ap-plication in such circumstances (a pending first con-tract application) there is a significant incentive for unscrupulous employers to strategize in their bargain-ing to effect delay and foster employee discontent with their new bargaining agent, or to make an appli-cation for first contract assistance itself in order to buy time for dissident employees to apply for rescission during the first open period by delaying the conclusion of a first agreement until after the period has closed."
However, in this particular case, the LRB determined that there was an insufficient basis to exercise their discretion, and allowed the application to proceed to a vote. It noted that the Union did not have a strike mandate, and had withdrawn its application for first contract assistance as well as having withdrawn the unfair labour practice. The
Board said,
"In these circumstances, the concurrency of the two applications lacks a significance that might attract close examination of the timing and context of the re-scission application...".
Mayer vs. Lawson Enterprises Ltd. et al and UFCW Local 1400 [2001] Sask. LRBR 485.
Counsel for the Union: Drew Plaxton, Walker Plaxton (Saskatoon)mail_walkerco@sasktel.net.
2. Court Decisions
Secondary Picketing Law Revamped by Su-preme Court of Canada
On January 24, 2002 the SCC released a unanimous deci-sion on secondary picketing. Upholding a decision of the Saskatchewan Court of Appeal, the Supreme Court held that secondary picketing is legal at common law, unless it involves wrongful conduct.
In 1997, RWDSU L 558 was on strike against Pepsi-Cola in Saskatchewan. Aside from picketing at the work locations, there were secondary pickets at retail outlets, the hotel where the scabs were staying and the managers' homes.
The employer was able to secure a broad injunction from the lower court, which was reviewed by the Court of Appeal on application by the Union. The appellate court upheld the restraint on picketing at the homes of Pepsi employees, while striking down the general prohibition against picketing at locations other than Pepsi's premises. In doing so, the Saskatchewan Court of Appeal aban-doned the Ontario Court of Appeal approach in Hersees of Woodstock v. Goldstein (1963) which had suggested that an employer's right to trade must always prevail over the right of striking employees, and that consequently, secondary picketing was illegal in and of itself.
Pepsi appealed to the Supreme Court of Canada, which dismissed the appeal. The Court was consistent with its approach in UFCW L. 1518 v. K-mart, permitting secondary picketing unless the picketing amounts to wrongful conduct.
On the facts, the picketing of the managers' homes was problematic for the Courts, not because of the loca-tion, but because the picketers engaged in intimidating behavior, yelling threats and insults. However, the right to picket peacefully was upheld.
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8. File No.: 27060, released January 24, 2002.
Counsel for the Union: Larry W. Kowalchuk of Kowalchuk Law office in Regina.
Pre-hearing Disclosure of Statement of Documents: Board's Hands Still Tied under Current Statute
This case is another chapter in a history of efforts by the Union to get pre-hearing disclosure, and it speaks to the limited authority of the Labour Relations Board, because of the absence of specific provisions in the legislation.
IBEW applied to have the Board declare Pyramid a successor employer. After it filed the application, the Un-ion applied for disclosure and particulars and documenta-tion related to any dealings between Pyramid and its predecessor, Sparrow Electric.
In 1997 when the application was commenced, the Board ordered that much of this information and docu-mentation be disclosed by Pyramid. That Board Order was set aside on review by the Court of Queen's Bench, because it was determined that legislation did not provide for Examinations for Discovery or Pre-hearing disclosure of documents. The Q.B. Judgment was upheld by the Sas-katchewan Court of Appeal.
The matter was returned to the Board with a fresh panel. This time the Union renewed the demand for par-ticulars and documents, using a Summons served on an officer of Pyramid, i.e. to attend the hearing and produce the documentation originally requested. The Board made an extensive Order requiring Pyramid to produce docu-mentation, and file with the Board a statement about the documents in a form similar to what is required by the Rules of Court. As described by Laing in the case herein, "the Board obviously concluded that as long as it made its order to a witness at the hearing, as opposed to prior to a hearing, the objection to its jurisdiction to make a disclo-sure order was removed".
The Court, while noting that the Board has its own practices, procedures and policies, in content and in appli-cation those must be consistent with statutory authority. The Court noted that the Board does have powers pursu-ant to the Public Inquiries Act. The Court said that a plain reading of the sections of that legislation does not author-ize the Board to order a witness or a party to a proceeding before it to produce a Statement as to Documents. The Order of the Board was equivalent to an interlocutory discovery order, but the fact it was made to a witness at the hearing does not change the nature of the Order, which was not allowed by legislation. In the end the Court found the Board was without jurisdiction to order Pyra-mid to produce the Statement as to Documents; however, the decision on the merits would not be set aside on that basis.
Pyramid Corporation vs. IBEW Local 529 and Saskatchewan Labour Relations Board, [QBG. No. 191 of 2001]; cited in [2001] S.L.R.B.R. c-19.
Counsel for the Union: Drew Plaxton, Walker Plaxton (Saskatoon)mail_walkerco@sasktel.net.
Court Approves Board Remedy: Employer ordered to give Employee list to Union after Board finds Unfair Labour Practice against Sobeys. List allows Union to ensure Employer mails Board Order to all Employees as directed by Board.
In an application before the Court of Queen's Bench the employer sought to set aside a decision of the Labour Relations Board reinstating an employee and ordering that he be paid monetary loss as a result of a termination in violation of the Act. The employee (Schatz), had been active in a union organizing drive.
The Board first heard the case on an interim basis, and ordered IGA to reinstate Schatz and to make him whole pending a final decision by the Board on the appli-cations. As part of the interim order, the Board ordered IGA to mail a copy of the Board's interim order to its em-ployees and to provide a list of those employees and their postal addresses to the union.
In its reply to the interim application, IGA denied violating the Act and asserted that Schatz had been termi-nated for cause, had accepted a severance package and signed a Release in its favour. Further, in this application before Court, the employer challenged the authority of the Board to grant the interim relief involving the provision of an employee list to the Union. The Employer com-plained that there had been no oral argument before the Board on the issue of this type of remedy, and the Board did not mention this relief in its oral reasons for decision. The Court recognized that the issue was whether the rem-edy ordered was patently unreasonable. It stated:
"...the Supreme Court of Canada has made it clear that remedial provisions should be subjected to the same pragmatic and functional analysis as all other provi-sions in order to determine the appropriate standard of review".
The Court went on to dismiss the Employer's application, noting that the Board accepted the argument that the ter-mination of a union organizer during an organizing cam-paign would be intimidating to employees. Therefor, the Order granted would permit the Union to verify whether the interim order had been mailed out to all employees. That direction by the Board was made in accordance with the purposes of the Trade Union Act, and was not patently unreasonable.
Sobey's Capital Inc. (College Park Garden Market IGA) vs. RWDSU and Saskatchewan Labour Relations Board (QBG No. 427 of 2001); cited in [2001] S.L.R.B.R. c-36.
Counsel for the Union: Larry Kowalchuk, Kowalchuk Law Office (Regina).
3. Arbitration Awards
Collective Agreement Fetters use of Contractors at Potash Mine
The Arbitrator reviewed the situation in a potash mine where contractors had been used on a regular basis over many years. He found that management did not have an unfettered prerogative to increase the use of contractors given certain limiting language of the collective agree-ment.
Contractors had been used for many years in this potash mine for water control. However, the bargaining unit employees also worked in that area and one question was whether a boundary could be drawn around the bar-gaining unit work. The Union had to recognize that a cer-tain segment of work had been granted historically, with-out objection, to contractors. In any event, the "contract-ing out" language in the collective agreement did not pro-vide an absolute prohibition.
The Employer sought to rely upon an Article in the collective agreement, which in general was a statement that the clause did not restrict the Company to let con-tracts "when it feels it necessary, economical or expedient to do so...". In the view of the Company, it had an almost unfettered discretion, therefore, to use contractors. The answer of the Union was to say that the onus rested upon the Company to demonstrate the necessary application of these "justifications". The Union argued that on the basis of the evidence the Company had not done that.
The Arbitrator found that there had been a violation in the collective agreement because the language did not allow the Company to indefinitely expand the use of con-tractors within the water control area. He found that cer-tain work had been lost by the bargaining unit. But most importantly, the Arbitrator found that the Employer could not rely upon the notion of an unlimited latitude in the language in order to avoid its obligation to provide some justification for a change in the division of labour that had existed as between the contract employees and the bar-gaining unit employees. In other words, once a right or boundary had been established defining bargaining unit work, then the Employer must rely on valid operational reasons to move such work away from the bargaining unit.
IMC Kalium vs. CEPU, Local 892 (Ish, March 5, 2001).
Counsel for the Union: Neil McLeod, Woloshyn & Co. (Saskatoon)nmcleod@sasklaw.com.
Bargaining Agent represents both Grievor and Affected Party in Seniority Case: Arbitral Deference to Management's Discretion Reviewed
This case involved a typical grievance challenging the failure of management to recognize seniority when filling a vacancy. What was unusual for Saskatchewan in that the Union provided staff members to represent both the senior grievor, and the junior incumbent.
With respect to the issue of filling vacancies, there was an interesting issue addressed by the Arbitrator in respect of the question of his reviewing authority. Arbitra-tor Pelton concluded that since the agreement did not stipulate that the assessment of abilities and qualifications fell within the sole discretion of management, he did have jurisdiction to review the decision of SaskPower on its merits. For some Arbitrators that would have ended the theoretical analysis.
This Arbitrator appears to concede some ground on that principle and still defer to the Employer, because he then goes on to say that he accepts that management is in a better position to judge qualification than he is, and "for that reason there remains a presumption of arbitral defer-ence to management's judgment". The Arbitrator then went on to dismiss the grievance, not being satisfied that the grievor did possess the requirements of the job. The award seems to say that the Union has an onus to get be-yond the management assessment, even though the Arbi-trator appears to have accepted that he had the right to do an extensive analysis of his own concerning the relative qualifications of the competing employees.
On the issue of staff representation, the Arbitrator noted the appropriateness of the approach, assuming that the representatives kept a "Chinese wall" between them.
C.E.P.U., Local 649 and Budau vs. SaskPower (Pelton, January 30, 2001).
Counsel for the Union: Doug Anderson for the grievor; Gord Hunter for the incumbent, CEP Staff.
Employer Ducks Insurance Liability: Two Recent Saskatchewan Cases
In two companion cases cited by the same Arbitrator, it was decided that there was no jurisdiction in the griev-ance/arbitration procedure to pursue claims where LTD benefits were provided pursuant to a separate insurance policy.
The focus of this case was the common-place prob-lem that we are well aware of, that is the categorization of jurisdiction when there is a dispute concerning the provi-sion of benefits; that is assigning the primary obligation to the employer or to the insurer, with the related question of how to pursue the claim.
In this case, the employer maintained, successfully, that an analysis of the collective agreement, even though reference to the terms of the insurance policy had been incorporated, provided no greater obligation than the payment of premiums. The plan conditions were set out in the collective agreement as information for union mem-bers. The case was argued with respect to the Brown and Beatty typology. In the end, the Arbitrator found for the employer, to some extent in recognition of past practice between the parties. He said,
"In short the past practice, while not conclusive, cer-tainly leads support to the proposition that, given the provisions of the collective bargaining agreement and the plan text, SAHO, the employers and SUN did not intend disputes over Long Term Disability benefits to be dealt with through the grievance and arbitration process".
One aspect of the case, which did not receive sufficient consideration in our view by the Arbitrator, was the role of the Saskatchewan Association of Health Organizations ("SAHO"). The actual employer was Saskatoon District Health, which operates the Royal University Hospital. But the collective agreement was a Province-wide one entered into between SUN and SAHO. SAHO was joined as a party. But as well, SAHO itself is the insurance carrier. So we have the situation of the insurance carrier being the statutory bargaining representative for all health employ-ers. SAHO provides labour relations services, and in some cases provides legal counsel. Thus, the Union believed that the Arbitrator should consider whether the jurisdic-tional question with respect to the litigating of LTD bene-fits should take into account this particular fact situation concerning the status of the carrier - wearing "two hats" as it were. It was argued that SAHO was a party to the collective agreement and could not escape its responsibili-ties under the collective agreement to assess the LTD claim. However, the Arbitrator was not convinced, nor did he give a lot of attention to that argument.
In the end, it seems that this was another case where an arbitrator acted under the assumption that the utiliza-tion of an insurance carrier means that the employer can off-load liability.
Saskatchewan Union of Nurses, Local 75 and Suetta vs. Royal University Hospital and Saskatchewan Association of Health Or-ganizations (Pelton, April 19, 2001).
Counsel: Cathy Zuck, SUN in-house counsel at SUN, and Neil McLeod, Woloshyn & Co. (Saskatoon) nmcleod@sasklaw.com.
QUEBEC
1. Reform of the Labour Code
2. Responsibilities and Obligations of a Union and its Representatives
3. Demutualization
4. The Safeguarding Order
Me Denis Bradet, with the collaboration of Mrs. Vicky Bernard
1. Reform of the Labour Code
The National Assembly modified the Quebec Labour Code on June 21, 2001 by passing and assenting Bill 31, entitled "An Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions" (Bill 31, L.Q. 2001, ch. 26).
The establishment of a new decision-making author-ity, the Commission des relations du travail (CRT), is one of the main amendments introduced by this bill. This ad-ministrative Court will take over the decision-making responsibilities currently exercised by the Office of the Labour Commissioner General. The Labour Court, which was the level of appeal, is abolished.
The establishment of the CRT is welcomed because it should allow greater efficiency and speed of the process of resolution of conflicts in labour relations matters, the whole due to its diverted process and increased powers devolving on the new labour relations agents. However, as outlined by the Quebec Bar, the mechanism of review of the decisions rendered by the CRT, introduced by sec-tion 59 of Bill 31, appears to be clearly inadequate and insufficient. On the one hand, the grounds of review pro-vided for in this section are too limited and, on the other hand, it is the labour commissioners themselves who re-view the decisions rendered by their peers.
Moreover, despite the union circles demands for the broadening of the notion of "employee" and the addition of a definition of "self-employed person" in the Labour Code, this notion has remained unchanged. Unions recall that the reality of the labour market has considerably changed in Quebec in the last 15 years and note an in-crease of atypical jobs for which unionization is out-of-reach. Due to this fact, the absence of a definition of "self-employed person" demonstrates, according to un-ions, that the reform is not a real modernization of labour relations.
As to the famous section 45 of the Labour Code, which guarantees the validity of a certification in case of alienation of an undertaking, it is, for some people, con-siderably weakened and, for some others, insufficiently relaxed. From now on, the employees' collective rights are protected in case of operation or alienation of an un-dertaking by judicial sale. However, in case of bank-ruptcy, for example, the new law allows an employer, in certain circumstances, to circumvent the application of this section, notably when the employer decides to turn to sub-contractors. The management and union parties can now agree to renounce, following a particular agreement to that effect, to the application of section 45, which used to be considered as being of public order.
From the unions' and managements' points of views, the reform submitted by the Minister of Labour does not meet expectations and shows important gaps. The union circles apprehend that these gaps will stop the collectivization of the individuals' balance of power. As to the management leaders, they believe that the reform does not meet the North American economical develop-ments objectives, which require increased market com-petitiveness.
Some could pretend that it is a typical example of much ado about apparently nothing. Everyone severely judge this feeble reform for diametrically opposed rea-sons, except, especially, the FTQ. In reality, except the reorganization of the administrative and judicial courts, the submitted amendments are near statu quo. Therefore, the discussion remains opened despite the recent and rap-idly passed Bill 31.
Finally, it is important to note that some provisions of the Law are still not in force, especially the ones estab-lishing the Commission des relations du travail. In this case, the Government of Quebec seems to have great problems filling in the principal position of this Commis-sion, meaning the presidency, due to absence of consen-sus between managements and unions. The establishment itself of the Commission would supposedly be in peril. To be continued.
2. Responsibilities and Obligations of a Union and its Representatives
A) A union leader and a union can both engage their respective liability, personally and as principal
Boileau v. Travailleurs et travailleuses unis de l'alimentation et du commerce (T.U.A.C.), section locale 501, S.C. Montreal, 500-05-048672-990, July 4, 2001, REJB 2001-25319
In a recent decision, the Superior Court confirmed the responsibilities and obligations of a union leader, who must abide by the rules of conduct imposed by law in a way that is not prejudicial to others.
In this case, the three plaintiffs were present on the picket line during a strike triggered by the union leader, who realized, a few hours later, that he omitted to send to the employer the strike notice required by the Quebec Labour Code, and, consequently, that the strike was ille-gal. The employer decided to fire the persons who partici-pated to the illegal strike.
Complaints and dismissal grievances for union ac-tivities were filed. The Canada Labour Relations Board recognized that the employer was exercising activities of federal jurisdiction and, therefore, revoked the union cer-tification obtained in virtue of provincial laws. The three plaintiffs were facing a gap in the law due to the absence of a right to continue the proceedings already began in virtue of the provincial legislation. Therefore, they filed an action in damages against the Union and its leader. They claimed $240,000 each for loss of salary, moral damages, defamation and abuse of rights.
The Superior Court outlined that the union leader engaged its personal liability in virtue of the general rules of civil liability even if he always acted within the scope of his duties. Moreover, because the union leader's negli-gent omission occurred within the scope of his union du-ties, the Union was found liable, as a principal must be for the acts of its agents. The Court therefore sentenced both parties jointly to indemnify the plaintiffs for the damages suffered.
Despite the fact that the Court asserted that plaintiffs failed to their duty to minimize damages by refusing the offer of reinstatement from the employer two months after dismissals, it granted a compensatory sum for the loss of salary covering the period from the dismissal to the mo-ment when plaintiffs could have been reinstated following the offer, as damages for loss of salary. Moreover, be-cause of the anxiety and family disturbance suffered dur-ing this period, the Court also granted an amount of $2,000 to each plaintiffs as moral damages, but refused however to grant damages for defamation, abuse of rights and extra-judicial fees.
Union Attorney: Mtre. Robert Laurin
Tel.: (450) 922-7440
B) An arbitrator is not competent to hear a matter on responsibilities and obligations of a national union that is not subject to the collective agreement (nor sued for grievances for which the subjected union is blamed):
Conseil central des syndicats nationaux de Lanaudière (C.S.N.) v. Simard, C.A. Montreal, 500-09-010599-017, October 23, 2001, AZ-50103083
In this case, the Court of Appeal, on an appeal from the Superior Court, confirmed the decision of the latter Court and dismissed the declinatory exception against an action in damages.
In May 1998, Cascades Inc., Joliette Division, an-nounced the temporary closing of its plant for an unde-termined period of time, not long after the enterprise had bought a paper mill that belonged to Groupe Bédard Inc. (Bédard). The laid off employees, among who were plain-tiffs, then asked for defendants' advice, the Conseil cen-tral des syndicats nationaux de Lanaudière and the Fédération des travailleurs du papier et de la forêt, in view of negotiating with the employer the resumption of activi-ties as soon as possible. Defendants having totally taken control of the negotiations, putting aside the local union's management committee, employees of the plant and of Bédard adopted, on their recommendation and through a vote by secret ballot, the resolution to divide the local union in order to create two distinct unions for each plant. In March 1999, the plant nevertheless closed down and 40 persons were laid off, which incited plaintiffs to ask for defendants' help. The latter refused, retorting that nothing could be done.
Plaintiffs therefore sued defendants for their omis-sion to obtain from the employer its commitment in ex-change of the division of the union structure, conse-quently failing in their duty of representation and ade-quate advice. In plaintiffs' opinion, defendants' inaction caused them serious harm and made impossible from now on all moves of labour to Bédard. As to defendants, they argued that plaintiffs' recourse was of the arbitrator's jurisdiction.
Distinguishing the present matter from the case Un-ion canadienne des travailleurs en communication, unité 4 v. Mayville, C.A. Montreal, 500-09-009285-008, Febru-ary 12, 2001 (D.T.E. 2001T?212 and J.E. 2001-477), the Court of Appeal dismissed the declinatory exception, agreeing that the first judge was right to conclude to the absence of jurisdiction of the arbitrator. The Court pointed out that the conduct to be blamed in the present file was not the local union or its representatives' conduct, but defendants' who are not subject to the collective agreement or sued for actions for which the union is blamed.
Union Attorney: Mtre. Jean Bernier (Laplante & Associés)
Tel.: (514) 523-1455,
E-mail: laplante.avo@videotron.ca
3. Demutualization
The Arbitrator does not lose his exclusive jurisdiction to interpret and enforce collective agreements despite the fact that he must take account of insurance policy's stipulations and the Regulation concerning demutualization:
Corporation de l'École Polytechnique de Montréal v. Syndicat canadien des officiers de marine marchande, S.C. Montreal, 500-05-064136-011, September 19, 2001, REJB 2001-26410
The insurance company Sun Life, who issued the group insurance policy took out by the École Polytechnique, in its quality of policyholder to guarantee various benefits to its employees, converted from a mutual company to a company owned by shareholders. It appears from the col-lective agreements that the covered employees paid a premium according to their situation and the nature of the benefit, while the employer paid a part of the premium.
The École Polytechnique, after consulting the Insur-ance Committee, approved the demutualization and opted for receiving an amount equivalent to the value of its shares in the new company, Sun Life Financial. Discus-sions between the various unions and associations con-cerning the sharing of the monies received failed because the unions claimed the total amount for the benefit of its members. Grievances were filed to that effect.
The École Polytechnique filed a Motion for Declara-tory Judgment to have the Court decide who was to be the owner of the monies received from the insurance com-pany. The unions requested the dismissal of the motion for the reason that the questions brought up came under the exclusive jurisdiction of the arbitrator appointed in virtue of the various collective agreements.
The Superior Court agreed with the petitioners (the unions). The Court outlined that if the employees have rights, it is necessarily due to the governing collective agreements, and their interpretation and enforcement are under the exclusive jurisdiction of the arbitrator. Besides, the fact that the arbitrator must take account of the insur-ance policy's stipulations and of the Regulation concern-ing demutualization does not make him lose his jurisdic-tion because of his power to interpret contracts and regu-lations when necessary for the settlement of grievances submitted to him. The Court pointed out however that the foundations of this claim were not obvious because they were based on the employees' participation to part of the payment of the premiums while the employer met the other part. However, the Court did not pronounce itself on the validity of this argument.
Despite the Weber case rendered by the Supreme Court of Canada, this decision is a surprise when one con-siders that the group insurance contract covered both the employees of the École Polytechnique who were not rep-resented by certified associations, and executives. Actu-ally, the rights of these employees could likely be affected by this decision, even if the arbitrator has no jurisdiction in this respect.
Unions Attorneys: Mtre. Paul E. Dion, for the Syndicat des offici-ers de marine marchande
Tel.: (514) 397-0718
Mtre. Pierre Grenier, for the Syndicat des employés de bureau de l'École Polytechnique, the Syndicat du personnel d'entretien et des métiers de l'École Polytechnique, the Syndicat des em-ployées du service des ressources humaines de l'École polytech-nique
Tel.: (514) 525-3414, E-mail: pgrenier@mmgs.qc.ca
Mtre. Jean St-Pierre, for the Association des professeurs de l'École Polytechnique
Mtre. François Meunier, for the Association du personnel de l'École Polytechnique
Tel.: (514) 356-8888
4. The Safeguarding Order
Very specific circumstances, combined with a risk of aggravation of the medical condition of the employee, can justify the arbitrator to issue a safeguarding order:
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, T.A., June 26, 2001, AZ-01145126
In this case, the union sought to obtain an interlocutory order of safeguard of an employee's rights in the context of a grievance concerning a progressive return to work and a wage loss replacement plan.
The employee, who was working part time on a permanent basis, missed work on the physician's recom-mendation, following the diagnosis of a chronic fatigue combined to fibromyalgia. Even if the attending physician suggested a progressive return to work starting on May 15, 2000, the employer imposed an accelerated rhythm and a date of return to regular work, while diminishing, then ceasing, the wage loss replacement plan. The em-ployer also summoned the employee to a medical evalua-tion where her physical resistance was evaluated. Follow-ing that evaluation, her attending physician decreed a complete cessation of work for a period of ten days.
The arbitrator evaluated the risk of harm and the balance of convenience in light of the caselaw developed in the labour relations domain regarding safeguarding orders, and noted that, faced to a diagnosis of chronic fatigue and fibromyalgia, the rehabilitation and reinstate-ment to work could be part of the treatment. He con-cluded that it could result either in amelioration or dete-rioration of the condition, depending on whether the pa-tient's limit of efforts is adequately defined.
In his opinion, the intense efforts made by plaintiff at the medical evaluation asked by the employer demon-strate a condition subject to aggravation. He pointed out the risk, in the present case, that the health be affected and that the chance of rehabilitation within the 36-months delay (following which the employee is exposed to dis-missal) be reduced. He mentioned that prudence is appro-priate in the present case to avoid worsening of the prob-lem. The balance of convenience was in favor of the em-ployee.
He made clear however that the situation is that par-ticular that it should not constitute a precedent. The CARRA norms only have an indicative value. The wage loss replacement plan arising from the return to work rec-ommended by the attending physician shall be paid retro-actively from July 31, 2000 and the model suggested by the employer be postponed until the decision on the mer-its of the grievance is rendered.
In this case, the arbitrator decided to issue a safe-guarding order in light of the fact that very specific cir-cumstances, combined with risk of aggravation of the employee's medical condition, could compromise sooner or later the success of her steps towards a progressive return to work. This case is distinguishable in that it re-minds the exceptional nature of the safeguarding order.
Union Attorney: Mtre. Michel Gilbert
Tel.: (418) 683-3000, E-mail: mgilbert@grondinpoudrier.com
Motions Briefs
This is the first ever CALL Newsletter Gossip Column. It's for brief summaries about lawyers in motion, get it? Motions Briefs? If you can come up with a better title, send it in.
We're hoping that this will be at least as interesting as all that serious editorial copy in the rest of the publication. We welcome all contributions, but reserve the write to edit for brevity, clarity or potentially defamatory content. Any news about CALL members assuming new positions, retiring, receiving appointments, awards etc. is welcome. If you want to forward personal information about marriages, birth of a child that's up to you.
Alberta
Sheila Greckol
Sheila Greckol, the only female past-president of CALL, is now a Queen's Bench judge in Alberta. According to the Edmonton Journal newspaper, "December 5, 2001...was a dark day for journalism because it was on that day that Sheila Grekol...outspoken and impassioned labour lawyer, civil rights activist, feminist, and political campaigner was silenced." While we couldn't agree more with that characterization of Mlady, it's a tremendous compliment that someone with her background received a judicial appointment in a province with such a conserva-tive reputation. Said Grekol in an e-mail to this column before she was silenced "I am going to miss you all terri-bly. " NOTE to all conference panel moderators: Come up with topics on which Madame Justice Grekol can be a guest speaker so she can come to the next conference.
Bill Johnson Q.C.
For those of you wondering how the heck someone with Sheila Grekol's background came to be appointed in Blue Alberta, consider this piece of news. CALL member Bill Johnson of Calgary has been appointed Queen's Counsel. We're told this is a rare honour for labour lawyers (at least on the Union side) in Alberta.
British Columbia
In Vancouver, David Tarasoff has joined Granville & Pender Labour Law Office as a partner. The firm was formed just over a year ago by partners Patrick Dickie (late of CUPE) and Chris Buchanan (formerly of Victory Square Law Office) and Allison Matacheskie. Mandy Sigurgeirson has also joined the Granville & Pender La-bour Law Office as an associate. It has been suggested by our BC correspondent that it would have been better if the firm's offices had been set up a block away. This would put them on the corner of Granville and Dunsmuir. Since Lord Dunsmuir set the goons on the miners in his day, and it would make him to roll in his grave to have a la-bour law firm on the street named in his honour.
John McTavish has moved from Black, Gropper & Co., in Vancouver, and is now with the International Union of Operating Engineers - Local 115 in Burnaby, B.C.
Kate Young has joined the Victory Square Law Office.
Manitoba
CALL past-president Mel Myers has retired from the practice of law, although apparently he still spends a sus-picious amount of time in the firm's offices. He has been appointed to the chair of the Auto Injuries Compensation Appeal Commission, and is teaching Clinical Administra-tive Law at the University of Manitoba Faculty of Law.
The first annual Mel Myers Labour Conference will be held for lay members of the labour community in Mani-toba on April 5 and 6, 2002. The conference is being or-ganized by the lawyers at Myers Weinberg with the assis-tance from other CALL members in Manitoba. All pro-ceeds from the conference will be donated to the Occupa-tional Health Centre in the memory of Dick Martin. (A memorial to Dick appears elsewhere in this newsletter.)
Eli Goldenberg has left the practice of law at Myers Weinberg Kussin Weinstein Pollack to do a masters de-gree in psychology.
Garth Smorang has joined Myers Weinberg Kussin Weinstein Pollack.
Ontario
Melissa Kronick of Caley and Wray had a baby girl on December 19, 2001. Her name is Hannah Addison Redish Kronick.
Margaret Froh is no longer at OPSEU, and has moved to the Law Society of Upper Canada to be the Aboriginal Issues Coordinator.
Colin Johnston, who articled at Koskie Minsky and then practiced at Evans Law Firm in Toronto, has followed his heart and left Toronto. He can now be reached at 190 No-tre Dame Street, P.O. Box 1404, Belle River, Ontario, N0R 1A0 or at colinbjohnston@hotmail.com
Martha Milczynski and Karen Shaver, formerly of Gowlings, are now practising at at Blake Cassels Gray-don, as is Andrea York.
Allison Hudgins recently left the University of Toronto Faculty Association after 10 years as in-house counsel.
She will stay involved with the Hospital for Sick Children - Olivieri case on behalf of the Association, but has set up shop as a sole practitioner.
The focus of her private practice will be intellectual prop-erty law for employees and the unions/associations that represent them. (This is also the topic of her 'LL.M. thesis to be'.) Specifically, she now deals with employees and independent contractors in the "Information Economy", copyright, publishing contracts, patent ownership rights, research ethics, confidentiality agreements, freedom of information, academic freedom and freedom of expres-sion.
Her office is now located in the Sack Goldblatt Mitchell suite, where she is a tenant. Allison is also on the editorial committee of the CALL Newsletter so now you know where to find her with your breaking news stories, and you can discuss whether or not they were created in the course of employment...
There are new firms in Toronto.
Paliare Roland Rosenberg Rothsein LLP
The following have left Gowlings and moved to Paliare Roland Rosenberg Rothstein LLP:Donald Eady, Lily
Harmer, Andrew Lewis, Andrew Lokan, John Mon-ger, Chris Paliare, Ian Roland, Linda R. Rothstein, Nick Coleman, Martin J. Doane, Ken Rosenberg, Rob Centa and Richard Stephenson.
Watson del Junco
Cindy Watson and Eric del Junco have set up shop, joined by Lisa Triano.
Quebec
At Trudel, Nadeau, Lesage, Lariviere et Associates in Montreal there have been some changes. Both Claude Masse and Louis Claude Trudel have retired. Sylvan Senez has moved to practice at Melancon, Marceau in Quebec City.
Miscellaneous
UFCW Canada will hold the first conference for counsel who represent Canadian Locals from May 6 to 8, 2002 in Banff.
Foot Notes
Many thanks to Aida Holmes at the Victory Square Law Office for her assistance in compiling this column.
This is your column. For future editions, please forward all "gossip" to the attention of Anne Gregory at UFCW Local 832 in Winnipeg: anne.gregory@UFCW832.com or 204-786-5055. Thanks.
Collected Wisdom
Note from the editors: We are hoping to use this column to generate discussion and input from practitioners across the country. If you have a practice question - write to the Newsletter Committee at jhughes@ceglaw.com - we will post our thoughts and any subsequent comments from our readership.
QUESTION:
What do you do if your client comes to you in the context of a discharge case with an offer from the employer to settle for a sum of money and termination of employment but there are concerns about the grievor's capacity to instruct. Obviously, if there is a medical issue of capacity then there may also be a right to claim long-term disability benefits. What do you do?
ANSWER:
There are really two separate problems here: is the settlement offer reasonable in light of the fact that there might be an LTD claim? and how do you ascertain the grievor's capacity to consent?
Clearly, the first question will depend on all the facts and you would assess the issue in the same way as you would assess any other settlement offer. Further, the settlement of the employment status is of-ten not determinative of an employee's right to file for LTD benefits. The employee may still be able to claim after the termination.
On the second issue, you may want to get a medical opinion from the grievor's treating physician re-garding capacity. Wrapped up in this, however, is the need to get a release from the grievor to speak to her doctor.
One suggestion from a committee member (who had this problem in real life) was to provide the grievor with a letter to take to her Doctor which explained what the offer was, and basically what her two options were. The letter included a section which asked the doctor to tick off the correct response:
Yes ___ Ms. X has capacity to understand these options and advise the Union of her wishes.
NO __ Ms. X does not currently have capacity to understand these options and advise the Union of her wishes.
There was a space at the bottom of the letter where the grievor could sign giving her authorization for the doctor to check off one of the questions about her capacity. It was left up to the doctor to object if he didn't think she could give that authorization.
In the real life case, the grievor signed the form and the doctor checked off that she had capacity to understand the options. The union rep involved explained them fully and asked her what she wanted to do. She accepted the settlement and all is well.
So, you should make sure the doctor understands the kind of decision the grievor is about to make, since it is the capacity to make a particular decision that is relevant. Note, however, that in the end, it may be irrelevant whether the grievor has capacity to consent since it is well established that the union can agree to a settlement without the grievor's consent as long as that settlement is reasonable.
Disclaimer: This column does not constitute legal advice. If you are still puzzling over what to do, consult a lawyer.
Building Bridges
What's that on my foot? Big business interest in the service sector and the new threat to workers
by Karl Flecker, Education Coordinator
The Polaris Institute
Steven Shrybman, an Ottawa trade lawyer, has often described the broad category of 'services' as anything you can't drop on your foot. In fact, the list is quite extensive- including more than 160 distinct services (see partial list at end of article) which are facing a massive privatization and de-regulation agenda under an international trade agreement called the General Agreement on Trade in Services (GATS).
Services are the new priority area for international rule making under the aegis of the World Trade Organization. WTO advo-cates are clear when they say, "services underpin all forms of international trade and all aspects of economic activity."
There is of course big money to be made by developing new rules for the international in trade in services, particularly by global transnationals who are eager to entrench corporate friendly trade and investment rules within the WTO. The annual global dollar figure spent on services is in the trillions.
Trade in service sectors like healthcare, education and water are shaping up to be the most lucrative of all. Global expendi-tures on water services now exceed $1 trillion dollars a year; on education, they exceed $2 trillion; and on healthcare, expen-ditures exceed $3.5 trillion.
The service sector also involves countless numbers of workers. In Canada that means more than 11 million jobs or ¾ of total employment. It is also a dominant sector of new jobs -consider that 90% of the 319,000 new jobs created in 2000 were in service sectors.
This convergence of - tremendous profit opportunity, corporate led international rule making with potentially complex impli-cations to numerous workplace laws, regulations and policies (not to mention the workers) provides the background for why Canadian Labour Lawyers should be interested in the GATS.
What is the G.A.T.S.?
The GATS is one of more than twenty trade agreements administered and enforced by the WTO. It was first established in 1994 at the conclusion of the 'Uruguay Round' of the General Agreement on Tariffs and Trade (GATT). At that time, the 100 some signatory countries to the agreement established that negotiations to 'progressively raise the level of liberalization' for trade in services would get underway in February 2000.
Simply put, the WTO members agreed to systematically remove government regulations that slow down profit taking and foreign investment by transnational corporations into the service sectors, including public services.
Originally, the negotiations for the expansion of the GATS rules were scheduled for completion in 2003, but the recent WTO meeting in Doha, Qatar managed to quietly incorporate the GATS negotiations schedule into the so called "new round" of global trade talks which are to be completed in 2005 - the same deadline set for the completion of the FTAA negotiations.
The GATS intends to constrain all levels of government's capacity to deliver and regulate a diverse array of services (see list at end of article) and furthermore will pry open access to government contracts for the primary benefit of the big business service transnationals.
"[GATS] is first and foremost an instrument for the benefit of business" - The European Commission
The GATS power to restrict governments is through a set of what is best described as legal 'power tools' that are buttressed by WTO-enforced trade sanctions.
WTO background papers have already identified national labour laws as a category of laws likely to adversely affect the competitiveness of foreign service suppliers.
Consider that regulations governing workplace conditions such as employment equity obligations, work week hours, occupa-tional health and safety legislation or minimum wages to name just a few, can be interpreted by these agreements as "impact-ing the conditions of competition" that indirectly disadvantage corporations interested in being foreign service providers to WTO member countries.
Using the legal power tool of 'national treatment,' these labour laws could be found to violate this obligation which is cur-rently found in trade treaties like the GATS and is slated to be included in agreements like the Free Trade Agreement of the America's (FTAA).
Another legal power tool dubbed 'domestic regulation rules' will limit how all levels of government (First Nation, municipal, provincial or national) can use licensing requirements, technical standards or qualification requirements in areas of service delivery.
Consider the implications for professions like teachers or lawyers. Would these professions be able to maintain their capacity to develop and maintain their own professional standards?
Well the answer provided by one Foreign Affairs/Trade Officer in the summer of 2000 was an absolute "yes" provided that these "standards don't interfere with trade."Clearly, it is the rules of international trade that can trump the ability of a range of service sector professions to establish their own accreditation rules.
In the WTO world, determining what regulations don't interfere with trade is decided by something called the 'necessity test'. For example, licensing laws, professional standards and apprenticeship programs would be scrutinized against the crite-rion of a critical trade focused question - are these laws, standards or programs "more burdensome than necessary to ensure the quality of service."
The task of this scrutiny could fall to an international agency with veto power over all WTO member countries parliamentary and regulatory bodies. A confidential memo leaked from the WTO on March 19, 2001 makes it clear that under the GATS national laws and regulations will be struck down if they are 'more burdensome than necessary' to business.
So for example, employment equity requirements applying to Federal Contractors in industry sectors such as banking, com-munications or inter-provincial and international transportation could be challenged by foreign service suppliers, who argue these workplace requirements have to go because of their potential burden to business.
It is noteworthy that the employment equity designated groups, women, aboriginal persons, persons with disabilities and visible minorities together account for over 65% of the Canadian workforce. Many of these folks work in the lowest pay-ing, least secure occupational categories, which are service sector occupations.
It is not difficult to imagine that a massive privatization/de-regulation agenda will have a disproportionately negative effect on a particularly vulnerable section of the workforce.
The GATS can also threaten labour laws through specific provisions that define four different ways that services can be sup-plied to member countries of the agreement. The 4 different modes of supply are as follows:
1) Cross-border supply, where services are supplied via mail, phone, fax, Internet or teleconferencing between, for ex-ample, a lawyer and a client, a technician and customer, or a doctor and patient.
2) Consumption abroad would include services supplied like tourism, students studying abroad or receiving medical treatment abroad.
3) Commercial presence, where a service provider sets up shop in a member country to provide services like foreign bank branches, healthcare companies, laboratories or clinics.
4) Movement of natural persons, which covers the temporary entry of workers who are contracted to provide a service.
While each of these categories has implications on labour regulations, it is the 4th mode of supply that contains significant risks for some of the most vulnerable class of workers: temporary help.
Internal memos from WTO officials reveal just how far along things have come.
Hamid Mamdouh, Director of the WTO's Trade in Services Division, commented on July 2001 that there is now a 'remark-able' willingness among GATS negotiators to discuss issues related to entry of temporary labour 'that were previously con-sidered untouchable due to their political sensitivity.' While he acknowledged that some issues, such as minimum wage re-quirements, are 'extremely difficult to deal with at the multilateral level' they are now being discussed seriously at the GATS table. Mamdouh reported that WTO members agreed to hold a symposium on this subject after Doha. Putting it off until after Doha presumably was done to avoid antagonizing organized labour before the Ministerial was held.
Consider that this type of employment, commonly known as contingent work, has grown substantially in the last decade and is identifiable by its low-wage, racially polarized, minimal rights status.
In a global marketplace, services industry transnationals recognize they can make tremendous profit by loosening regulations governing the entry of temporary workers to their subsidiary operations in WTO member countries and by increasing their access to low wageworkers from other countries.
The WTO is equally clear that obtaining 'less costly personnel than what might be available on the domestic labour market is a 'significant benefit.'
It is not difficult to envision scenarios like healthcare companies recruiting low-wage service workers from neighboring GATS or FTAA countries to operate their facilities on temporary work permits.
Contingent employment situations are fraught with uneven labour/management relations, tend to be a racially polarized, and human rights abuses are not uncommon.
Without a doubt, the importation of low-wage workers also creates a downward pressure on wage and benefit demands amongst domestic service workers who may be competing for the same employment opportunities.
Finally, there is a good public ethic reason to be critical of subjecting services to global competition. Once critical important public services like education, healthcare, water/waste /energy utilities, to name a few, are privatized, the ability of all citi-zens to have equitable or universal access to core services is jeopardized.
The fact that legal rules are currently being written to further privatize public services via international trade agreements in secluded locals and in relative secrecy with little meaningful public engagement is an affront to local democracies.
To think of the GATS as a mere 'trade agreement' is a significant oversight. In fact, a former WTO Director acknowledges that the GATS extends 'into areas never before recognized as trade policy."
This far-reaching nature of the GATS requires a new level of workplace discussions and needs progressive analysis from the legal community.
The call for building bridges with many new communities, including labour lawyers, to help others understand the intricacies of these negotiations and specifically the legal ramifications of some of the 'power tools' on workplace regulations and pub-lic policy is urgently needed - before the GATS is dropped on our collective feet.
Karl Flecker kflecker@sympatico.ca is the Education Coordinator with the Polaris Institute. P.I. is a research, education and action shop that assists citizens groups national and internationally challenge corporate rule. If you are interested in learning more about the GATS contact www.polarisinstitute.org
Endnotes
DICK MARTIN - A TRIBUTE
By yelling "It's a movement, not an institution!" from the podium, Dick Martin once grabbed everyone's attention at a Manitoba Federation of Labour Convention. At the time, he was tuning up the troops as MFL president. He started out as president of USWA Local 6166 in Thomp-son, Manitoba and then became MFL president. From the MFL, he became a Vice President of the Canadian Labour Congress.
On his retirement from the CLC in 1999, Dick was honoured at the CALL Conference business lunch. We were meeting in Toronto and we gave him a pair of roller blades. I don't remember if we gave him any of the usual roller blade "personal protective equipment". I do recall thinking he was genuinely appreciative, but seemed vaguely alarmed about his gift. Or he may have been thinking that he wouldn't really have time to use the blades, because he had so many projects in the works, even though he was "retired".
Before Dick moved to Ottawa, he established him-self as the face of Labour in Manitoba. As president of his USWA local in Thompson, Manitoba, he worked to im-prove benefits for his local and made history taking them on strike against the Anti-Inflation Board (not Inco) when "6 and 5" meant his local wouldn't get a negotiated wage increase ... and he won. That's how Dick made his mark in Thompson.
Once he came "South", he invigorated the MFL, building the new Union Centre in Winnipeg, helping pub-lic sector bargaining agents transform themselves into more militant unions, electing NDP governments provin-cially and MP's federally. More recently, he had started travelling regularly to South America to improve working conditions there and had been elected the first North American, and english-speaking president of the Inter-American Regional Labour Organization.
Even though Dick moved to Ottawa a decade ago, if you represent workers in Manitoba, Dick's legacy is ap-parent every day.
He believed that workers should actually survive the work day and make it home in one piece. Workplace health and safety legislation, the first worker-controlled and publicly funded occupational health centre in Canada, and the Day of Mourning on April 28th were a few of Dick's projects. Now, every Canadian jurisdiction has health and safety standards. And, because it wasn't enough to have legislation and regulations if the workers didn't know how to use them, he helped establish Mani-toba's Labour Education Centre. The Occupational Health
Centre operates in Winnipeg's Union Centre providing insured medical services.
The Day of Mourning is now observed in more than 100 countries. The flag on the Peace Tower in Ottawa flies at half mast on April 28th. That's because Dick pointed out that (and I am paraphrasing only slightly) if they could drop the flag for dead senators, they could cer-tainly lower it once a year to honour workers killed and injured on the job.
Dick also believed that workers should not have to do battle with the monolith that is the (Un)Employment Insurance system. This became another project for him when he learned a steelworker committed suicide after being defeated by the (then) UIC machine.
With Dick's guidance and work, Winnipeg's Community Unemployed Help Centre was born. The staff help workers navigate the EI system. The CUHC brought on the Lesiuk case, which successfully challenged the EI scheme on the basis that it discriminated against women who had a lower degree of attachment to the workplace because of their family responsibilities.
In an average year, the CUHC advocates recover more than a million dollars for Manitoba claimants who were originally denied some (or all) of their benefits. Be-sides appeal work, the Centre is a community resource, and their phone number is on speed dials across the prov-ince.
What many people don't realize is that Dick was in-strumental in CALL's creation. With the arrival of the Charter, Labour needed a way to intervene effectively in litigation where worker's rights were at stake. Dick rec-ognized the need to establish a network for labour lawyers and to co-ordinate the Charter litigation and labour inter-veners in each jurisdiction through the CLC. Out of this activity, CALL was born.
Within a year of his retirement, Dick was diagnosed with cancer. By the time we met in Halifax for the 2000 CALL Conference he was in a serious fight. From all accounts, it's the only fight he ever lost. He died on October 30, 2001. He was 57. Dick was remembered at services in Ottawa and Winnipeg in November, 2001.
Donations in Dick's memory can be made to the Oc-cupational Health Centre, First Floor - Union Centre, 275 Broadway, Winnipeg, Manitoba, R3C 4M6. All proceeds from the First Annual Mel Myers Labour Conference in April 2002 will be donated to the OHC in Dick Martin's memory.