Yukon Workplace Law William Clements Koskie Glavin
Description: Yukon Workplace Law William Clements Koskie Glavin Gordon Overview Employment Statutes How Workers Unionize (and what happens when they do) Jurisdictional Case Study: Drug and Alcohol Policy 5232023 2 Employment Statutes Employment
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slide1. Yukon Workplace Law William Clements
Koskie Glavin Gordon<br>
slide2. Overview Employment Statutes
How Workers Unionize (and what happens when they do)
Jurisdictional Case Study: Drug and Alcohol Policy 5/23/2023 2<br>
slide3. Employment Statutes<br>
slide4. Employment Standards Act Application 2 (1) This Act applies to every employee employed in the Yukon and to the Employer of every such employee.
(2) This Act does not apply to the Government of the Yukon or to the employees of the Government of the Yukon. Content Hours of work, overtime pay, breaks
Minimum wage
Vacations
Holidays
Family leave, other special leave
Notice and pay in lieu of notice 5/23/2023 4<br>
slide5. Employment Standards Act Administration & Jurisdiction The Act provides that the Minister shall appoint a director of employment standards who, along with any other designated employment standards officers, has the authority to investigate complaints and order compensation for lost wages and other matters.
Notably, Employment Standards Officers don’t have exclusive jurisdiction – so non-unionized workers are still permitted to sue for wages owed, wrongful termination, etc:
11 Other Remedies
... Nothing in this Act or the regulations affects the right of a person to commence and maintain an action which, but for this Act, they would have the right to commence and maintain. 5/23/2023 5<br>
slide6. Workers’ Safety and Compensation Act Injury Prevention:
Occupational Health and Safety (Part 3) 26 Application of this Part
... this Part applies in respect of the performance of work in or in connection with the operation of any industry, other than a work, undertaking, or business that is under the exclusive jurisdiction of the Government of Canada Injury Compensation:
Workers’ Compensation Entitlement (Part 4) 78 Application
This part applies to all employers and all workers in all industries … 5/23/2023 6<br>
slide7. Workers’ Safety and Compensation Act Administration & Jurisdiction All matters arising under the Act are administered by the Workers’ Compensation Health and Safety Board.
Unlike the Employment Standards Act adjudicators, the WCHSB has exclusive jurisdiction:
5 Exclusive Jurisdiction
(1) The board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions that arise under this Act, and an action or decision of the board on a matter or question is final and conclusive and is not open to question or review in any court or tribunal or to being restrained by injunction, declaration or prohibition or removed by certiorari, judicial review or other process or proceeding.
Further, the Act limits any rights that may otherwise arise from a work-related injury:
127 Limitation on legal rights
(1) No action lies for the recovery of compensation, and all claims for compensation must be determined by the board under this Part.
(2) This Part is instead of all rights and causes of action, statutory or otherwise, to which a worker, a worker’s legal personal representative or a worker’s dependant is or might become entitled against the employer of that worker or against another worker of that employer because of a work-related injury arising out of and in the course of employment with that employer. 5/23/2023 7<br>
slide8. Human Rights Act Scope 9 Prohibited Discrimination
No person shall discriminate
(a) when offering or providing services, goods, or facilities to the public;
(b) in connection with any aspect of employment or application for employment;
(c) in connection with any aspect of membership in or representation by any trade union, trade association, occupational association, or professional association;
(d) in connection with any aspect of the occupancy, possession, lease, or sale of property offered to the public;
(e) in the negotiation or performance of any contract that is offered to or for which offers are invited from the public. 5/23/2023 8<br>
slide9. Human Rights Act Scope 11 Exemptions
(1) It is not discrimination for a religious, charitable, educational, social, cultural, or athletic organization to give preference to its members or to people the organization exists to serve.
(2) It is not discrimination for individuals to give preference to members of their family.
(3) Section 9 does not apply to
(a) the employment of a person to provide services in a private home or in any exclusively religious, charitable, educational, social, cultural or athletic organization;
(b) the choice by an occupant of a private home of a boarder or tenant to occupy part of the home. 5/23/2023 9<br>
slide10. Human Rights Act Administration & Jurisdiction Complaints are investigated and adjudicated by the Human Rights Commission.
Generally speaking, there is no right to sue for discrimination contrary to human rights legislation (Seneca College v. Bhadauria, [1981] 2 SCR 181).
Courts have been hesitant to adjudicate discrimination claims that are included as distinct causes of action in wrongful termination suits (Keays v. Honda Canada Inc. (2008), 2008 SCC 39).
However, more recently, Courts have expressed willingness to consider pleadings concerning discriminatory conduct and harassment when such conduct supports a claim for breach of contract and/or constructive dismissal (see, for example, Deol v Dreyer Davison LLP, 2020 BCSC 771) 5/23/2023 10<br>
slide11. How Workers Unionize (and what happens when they do)<br>
slide12. Labour Relations Statutes in the Yukon The following statutes set out the collective bargaining schemes that apply to workers, unions, and employers in the Yukon.
Canada Labour Code, Part 1:
private sector employees and employers
Public Service Labour Relations Act:
Yukon government employees, except for those covered by the Education Labour Relations Act
Education Labour Relations Act:
Teachers (including principals) and education assistants 5/23/2023 12<br>
slide13. Canada Labour Code, Part 1 Scope:
4 Application of Part
This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and employers’ organizations composed of those employees or employers. 5/23/2023 13<br>
slide14. Canada Labour Code, Part 1 2 Definitions
federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
(d) a ferry between any province and any other province or between any province and any country other than Canada,
(e) aerodromes, aircraft or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, …
See Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729 for a discussion of the application of Part I of the Code to private sector employees in the territories. 5/23/2023 14<br>
slide15. Canada Labour Code, Part 1 Part 1 of the Code covers the following:
The steps that employees must take if they wish to form a union and thereby gain access to the primary benefits of unionization:
Forcing the employer to bargain with its employees as a collective;
Just cause termination protection
The permissible structure of bargaining units: the group of employees that is permitted to bargain with the employer as a collective.
Rights, duties, and prohibitions that apply to employers, employees, and trade unions during an organizing drive, contract negotiation, and day-to-day contract administration.
The limited circumstances in which employees can legally strike and employers can legally lock out their employees.
A means by which unions and employers can resolve their differences
This presentation focuses on the Code, but the schemes set out under PSLRA and ELRA contain these same fundamentals building blocks. 5/23/2023 15<br>
slide16. Canada Labour Code, Part 1 How do workers unionize?
A trade union files an application to be certified as the exclusive bargaining agent for a group of workers employed by a specific employer with the Canada Industrial Relations Board (CIRB)
The application contains union cards signed by workers at the workplace that is seeking to unionize
If more than 50% of the workers in the proposed bargaining unit have signed union cards, the Board will certify the union without holding a further representation vote
If more 35% but less than 50% of workers in the proposed bargaining unit have signed union cards, the Board will order that a representation vote take place in short order. 5/23/2023 16<br>
slide17. Unfair Labour Practices Freedoms and Prohibitions during Organizing Drive Employee freedoms
8 (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.
Employer freedoms
(2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.
General prohibition
96 No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union. 5/23/2023 17<br>
slide18. Unfair Labour Practices Employer interference in trade union
94 (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; or
(b) contribute financial or other support to a trade union.
Exception
(2) An employer is deemed not to contravene subsection (1) by reason only that they
(a) in respect of a trade union that is the bargaining agent for a bargaining unit comprised of or including employees of the employer,
(i) permit an employee or representative of the trade union to confer with them during hours of work or to attend to the business of the trade union during hours of work without any deduction from wages or any deduction of time worked for the employer,
(ii) provide free transportation to representatives of the trade union for purposes of collective bargaining, the administration of a collective agreement and related matters, or
(iii) permit the trade union to use their premises for the purposes of the trade union;
(b) contribute financial support to any pension, health or other welfare trust fund the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees; or
(c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
(…) 5/23/2023 18 Employer Communications, Intimidation, and Coercion during Organization Drive<br>
slide19. Unfair Labour Practices “The Freeze”: Employer Interference 24 Application for Certification
…
Terms or conditions of employment not to be changed
(4) Where an application by a trade union for certification as the bargaining agent for a unit is made in accordance with this section, no employer of employees in the unit shall, after notification that the application has been made, alter the rates of pay, any other term or condition of employment or any right or privilege of such employees until
(a) the application has been withdrawn by the trade union or dismissed by the Board, or
(b) thirty days have elapsed after the day on which the Board certifies the trade union as the bargaining agent for the unit,
except pursuant to a collective agreement or with the consent of the Board. 5/23/2023 19<br>
slide20. Unfair Labour Practices Unions: Organizing on Company Time Prohibitions relating to trade unions
95 No trade union or person acting on behalf of a trade union shall
…
(d) except with the consent of the employer of an employee, attempt, at an employee’s place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union; 5/23/2023 20<br>
slide21. ULPS: Collective Bargaining Once a union is certified as the exclusive bargaining agent, the employer is obligated to engage in good faith negotiations with the Union and attempt to enter into a first collective agreement.
Crucially, the employer is not permitted to go over and above the union’s head and negotiate directly with individual workers or attempt to influence workers in favour of a specific proposal. 5/23/2023 21<br>
slide22. Prohibitions: Strikes and Lockouts The other important set of prohibitions concerns mid-contract work stoppages.
Unionized workers are prohibited from engaging in strikes except in the following circumstances:
no collective agreement is in force (either the CBA has expired or the parties are attempting to bargain a first contract),
the parties have attempted to bargain a new CBA, but have reached an impasse, and
the union has followed various procedural requirements, such as conducting a strike vote and serving notice on the labour board and the employer.
The same applies to lock-outs.
In exchange for this broad prohibition on mid-contract work stoppages, workers and unions can take disputes to arbitration which theoretically works as a quick, effective legal dispute resolution mechanism to address differences that may arise concerning the application of the collective agreement.
Pursuant to the Code, each contract must contain a mandatory arbitration clause. 5/23/2023 22<br>
slide23. Prohibitions: Strikes and Lockouts Effect of collective agreement
56 A collective agreement entered into between a bargaining agent and an employer in respect of a bargaining unit is, subject to and for the purposes of this Part, binding on the bargaining agent, every employee in the bargaining unit and the employer.
Provision for final settlement without stoppage of work
57 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.
Where arbitrator to be appointed
(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.
Idem
(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).
(…)
See also ss. 87, 91-2. 5/23/2023 23<br>
slide24. Jurisdiction: Labour Boards and Arbitrators Labour Board:
Applications for certification, decertification, variance, raids
Unfair labour practices
Declaration of an unlawful strike and cease and desist order
Arbitration:
Conditions of employment
Termination
Dispute over any matter in the collective agreement 5/23/2023 24<br>
slide25. Jurisdiction: Labour Boards and Arbitrators Arbitration:
In Weber v Ontario Hydro, [1995] 2 SCR 929, the Supreme Court of Canada confirmed that arbitrators have exclusive jurisdiction over every dispute relating to the employment relationship that can be seen as falling within the four corners of the collective agreement.
Arbitrators can consider whether there have been breaches of explicit terms of the CBA, as well as breaches of employment legislation that applies, including employment standards legislation, human rights legislation, and privacy legislation.
Until recently, it was presumed that human rights tribunals and arbitrators had concurrent jurisdiction concerning human rights complaints raised by unionized workers. In Northern Regional Health Authority v Horrocks, 2021 SCC 42, however, the Supreme Court of Canada suggested that such complaints could only be adjudicated by arbitrators, at least in the context of the Manitoba legislation. 5/23/2023 25<br>
slide26. Case Study<br>
slide27. Fact Scenario
The Employer operates a large grocery store in Whitehorse. The work at the grocery store is mostly not safety sensitive, but some workers are required to occasionally operate forklifts when unloading cargo.
Workers at a large grocery store in Whitehorse recently succeeded unionizing. The unionization drive, however, was fraught. The Employer issued various anti-union messages. Most of these were lawful expressions of the Employer’s position regarding unionization posted on the bulletin board. Verbally, however, the owner and other managers made various threatening statements to workers, suggesting that the store would shut down if a union was established.
The union filed a ULP complaint against the Employer and one worker, Beth, testified about these statements. Beth is one of the workers who occasionally operates a forklift. In the course of the hearing, it became clear that Beth was the lead organizer. The CIRB found that the Employer had engaged in an unfair labour practice by making these statements to workers and ordered it to cease and desist. Ultimately, the parties went on to bargain a first contract.
Beth has various health issues that cause her chronic pain. She uses medical marijuana to treat these. The Employer is aware of this. To the Union’s knowledge, Beth is the only employee who relies on medical marijuana.
Recently, the Employer unilaterally introduced a drug and alcohol policy that permits the Employer to test employees if it suspects that they are impaired at work.
Beth is upset – she feels she is being targeted because of her union activity and is concerned about no longer being able to rely on marijuana for her pain.
What options does the Union have to respond to this policy? What type of proceedings can the Union initiate, and at which fora? 5/23/2023 27<br>
slide28. Thank you 5/23/2023 28 William Clements
wclements@koskieglavin.ca
www.koskieglavingordon.com<br>
Koskie Glavin Gordon<br>
slide2. Overview Employment Statutes
How Workers Unionize (and what happens when they do)
Jurisdictional Case Study: Drug and Alcohol Policy 5/23/2023 2<br>
slide3. Employment Statutes<br>
slide4. Employment Standards Act Application 2 (1) This Act applies to every employee employed in the Yukon and to the Employer of every such employee.
(2) This Act does not apply to the Government of the Yukon or to the employees of the Government of the Yukon. Content Hours of work, overtime pay, breaks
Minimum wage
Vacations
Holidays
Family leave, other special leave
Notice and pay in lieu of notice 5/23/2023 4<br>
slide5. Employment Standards Act Administration & Jurisdiction The Act provides that the Minister shall appoint a director of employment standards who, along with any other designated employment standards officers, has the authority to investigate complaints and order compensation for lost wages and other matters.
Notably, Employment Standards Officers don’t have exclusive jurisdiction – so non-unionized workers are still permitted to sue for wages owed, wrongful termination, etc:
11 Other Remedies
... Nothing in this Act or the regulations affects the right of a person to commence and maintain an action which, but for this Act, they would have the right to commence and maintain. 5/23/2023 5<br>
slide6. Workers’ Safety and Compensation Act Injury Prevention:
Occupational Health and Safety (Part 3) 26 Application of this Part
... this Part applies in respect of the performance of work in or in connection with the operation of any industry, other than a work, undertaking, or business that is under the exclusive jurisdiction of the Government of Canada Injury Compensation:
Workers’ Compensation Entitlement (Part 4) 78 Application
This part applies to all employers and all workers in all industries … 5/23/2023 6<br>
slide7. Workers’ Safety and Compensation Act Administration & Jurisdiction All matters arising under the Act are administered by the Workers’ Compensation Health and Safety Board.
Unlike the Employment Standards Act adjudicators, the WCHSB has exclusive jurisdiction:
5 Exclusive Jurisdiction
(1) The board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions that arise under this Act, and an action or decision of the board on a matter or question is final and conclusive and is not open to question or review in any court or tribunal or to being restrained by injunction, declaration or prohibition or removed by certiorari, judicial review or other process or proceeding.
Further, the Act limits any rights that may otherwise arise from a work-related injury:
127 Limitation on legal rights
(1) No action lies for the recovery of compensation, and all claims for compensation must be determined by the board under this Part.
(2) This Part is instead of all rights and causes of action, statutory or otherwise, to which a worker, a worker’s legal personal representative or a worker’s dependant is or might become entitled against the employer of that worker or against another worker of that employer because of a work-related injury arising out of and in the course of employment with that employer. 5/23/2023 7<br>
slide8. Human Rights Act Scope 9 Prohibited Discrimination
No person shall discriminate
(a) when offering or providing services, goods, or facilities to the public;
(b) in connection with any aspect of employment or application for employment;
(c) in connection with any aspect of membership in or representation by any trade union, trade association, occupational association, or professional association;
(d) in connection with any aspect of the occupancy, possession, lease, or sale of property offered to the public;
(e) in the negotiation or performance of any contract that is offered to or for which offers are invited from the public. 5/23/2023 8<br>
slide9. Human Rights Act Scope 11 Exemptions
(1) It is not discrimination for a religious, charitable, educational, social, cultural, or athletic organization to give preference to its members or to people the organization exists to serve.
(2) It is not discrimination for individuals to give preference to members of their family.
(3) Section 9 does not apply to
(a) the employment of a person to provide services in a private home or in any exclusively religious, charitable, educational, social, cultural or athletic organization;
(b) the choice by an occupant of a private home of a boarder or tenant to occupy part of the home. 5/23/2023 9<br>
slide10. Human Rights Act Administration & Jurisdiction Complaints are investigated and adjudicated by the Human Rights Commission.
Generally speaking, there is no right to sue for discrimination contrary to human rights legislation (Seneca College v. Bhadauria, [1981] 2 SCR 181).
Courts have been hesitant to adjudicate discrimination claims that are included as distinct causes of action in wrongful termination suits (Keays v. Honda Canada Inc. (2008), 2008 SCC 39).
However, more recently, Courts have expressed willingness to consider pleadings concerning discriminatory conduct and harassment when such conduct supports a claim for breach of contract and/or constructive dismissal (see, for example, Deol v Dreyer Davison LLP, 2020 BCSC 771) 5/23/2023 10<br>
slide11. How Workers Unionize (and what happens when they do)<br>
slide12. Labour Relations Statutes in the Yukon The following statutes set out the collective bargaining schemes that apply to workers, unions, and employers in the Yukon.
Canada Labour Code, Part 1:
private sector employees and employers
Public Service Labour Relations Act:
Yukon government employees, except for those covered by the Education Labour Relations Act
Education Labour Relations Act:
Teachers (including principals) and education assistants 5/23/2023 12<br>
slide13. Canada Labour Code, Part 1 Scope:
4 Application of Part
This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and employers’ organizations composed of those employees or employers. 5/23/2023 13<br>
slide14. Canada Labour Code, Part 1 2 Definitions
federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
(d) a ferry between any province and any other province or between any province and any country other than Canada,
(e) aerodromes, aircraft or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, …
See Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729 for a discussion of the application of Part I of the Code to private sector employees in the territories. 5/23/2023 14<br>
slide15. Canada Labour Code, Part 1 Part 1 of the Code covers the following:
The steps that employees must take if they wish to form a union and thereby gain access to the primary benefits of unionization:
Forcing the employer to bargain with its employees as a collective;
Just cause termination protection
The permissible structure of bargaining units: the group of employees that is permitted to bargain with the employer as a collective.
Rights, duties, and prohibitions that apply to employers, employees, and trade unions during an organizing drive, contract negotiation, and day-to-day contract administration.
The limited circumstances in which employees can legally strike and employers can legally lock out their employees.
A means by which unions and employers can resolve their differences
This presentation focuses on the Code, but the schemes set out under PSLRA and ELRA contain these same fundamentals building blocks. 5/23/2023 15<br>
slide16. Canada Labour Code, Part 1 How do workers unionize?
A trade union files an application to be certified as the exclusive bargaining agent for a group of workers employed by a specific employer with the Canada Industrial Relations Board (CIRB)
The application contains union cards signed by workers at the workplace that is seeking to unionize
If more than 50% of the workers in the proposed bargaining unit have signed union cards, the Board will certify the union without holding a further representation vote
If more 35% but less than 50% of workers in the proposed bargaining unit have signed union cards, the Board will order that a representation vote take place in short order. 5/23/2023 16<br>
slide17. Unfair Labour Practices Freedoms and Prohibitions during Organizing Drive Employee freedoms
8 (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.
Employer freedoms
(2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.
General prohibition
96 No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union. 5/23/2023 17<br>
slide18. Unfair Labour Practices Employer interference in trade union
94 (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; or
(b) contribute financial or other support to a trade union.
Exception
(2) An employer is deemed not to contravene subsection (1) by reason only that they
(a) in respect of a trade union that is the bargaining agent for a bargaining unit comprised of or including employees of the employer,
(i) permit an employee or representative of the trade union to confer with them during hours of work or to attend to the business of the trade union during hours of work without any deduction from wages or any deduction of time worked for the employer,
(ii) provide free transportation to representatives of the trade union for purposes of collective bargaining, the administration of a collective agreement and related matters, or
(iii) permit the trade union to use their premises for the purposes of the trade union;
(b) contribute financial support to any pension, health or other welfare trust fund the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees; or
(c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
(…) 5/23/2023 18 Employer Communications, Intimidation, and Coercion during Organization Drive<br>
slide19. Unfair Labour Practices “The Freeze”: Employer Interference 24 Application for Certification
…
Terms or conditions of employment not to be changed
(4) Where an application by a trade union for certification as the bargaining agent for a unit is made in accordance with this section, no employer of employees in the unit shall, after notification that the application has been made, alter the rates of pay, any other term or condition of employment or any right or privilege of such employees until
(a) the application has been withdrawn by the trade union or dismissed by the Board, or
(b) thirty days have elapsed after the day on which the Board certifies the trade union as the bargaining agent for the unit,
except pursuant to a collective agreement or with the consent of the Board. 5/23/2023 19<br>
slide20. Unfair Labour Practices Unions: Organizing on Company Time Prohibitions relating to trade unions
95 No trade union or person acting on behalf of a trade union shall
…
(d) except with the consent of the employer of an employee, attempt, at an employee’s place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union; 5/23/2023 20<br>
slide21. ULPS: Collective Bargaining Once a union is certified as the exclusive bargaining agent, the employer is obligated to engage in good faith negotiations with the Union and attempt to enter into a first collective agreement.
Crucially, the employer is not permitted to go over and above the union’s head and negotiate directly with individual workers or attempt to influence workers in favour of a specific proposal. 5/23/2023 21<br>
slide22. Prohibitions: Strikes and Lockouts The other important set of prohibitions concerns mid-contract work stoppages.
Unionized workers are prohibited from engaging in strikes except in the following circumstances:
no collective agreement is in force (either the CBA has expired or the parties are attempting to bargain a first contract),
the parties have attempted to bargain a new CBA, but have reached an impasse, and
the union has followed various procedural requirements, such as conducting a strike vote and serving notice on the labour board and the employer.
The same applies to lock-outs.
In exchange for this broad prohibition on mid-contract work stoppages, workers and unions can take disputes to arbitration which theoretically works as a quick, effective legal dispute resolution mechanism to address differences that may arise concerning the application of the collective agreement.
Pursuant to the Code, each contract must contain a mandatory arbitration clause. 5/23/2023 22<br>
slide23. Prohibitions: Strikes and Lockouts Effect of collective agreement
56 A collective agreement entered into between a bargaining agent and an employer in respect of a bargaining unit is, subject to and for the purposes of this Part, binding on the bargaining agent, every employee in the bargaining unit and the employer.
Provision for final settlement without stoppage of work
57 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.
Where arbitrator to be appointed
(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.
Idem
(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).
(…)
See also ss. 87, 91-2. 5/23/2023 23<br>
slide24. Jurisdiction: Labour Boards and Arbitrators Labour Board:
Applications for certification, decertification, variance, raids
Unfair labour practices
Declaration of an unlawful strike and cease and desist order
Arbitration:
Conditions of employment
Termination
Dispute over any matter in the collective agreement 5/23/2023 24<br>
slide25. Jurisdiction: Labour Boards and Arbitrators Arbitration:
In Weber v Ontario Hydro, [1995] 2 SCR 929, the Supreme Court of Canada confirmed that arbitrators have exclusive jurisdiction over every dispute relating to the employment relationship that can be seen as falling within the four corners of the collective agreement.
Arbitrators can consider whether there have been breaches of explicit terms of the CBA, as well as breaches of employment legislation that applies, including employment standards legislation, human rights legislation, and privacy legislation.
Until recently, it was presumed that human rights tribunals and arbitrators had concurrent jurisdiction concerning human rights complaints raised by unionized workers. In Northern Regional Health Authority v Horrocks, 2021 SCC 42, however, the Supreme Court of Canada suggested that such complaints could only be adjudicated by arbitrators, at least in the context of the Manitoba legislation. 5/23/2023 25<br>
slide26. Case Study<br>
slide27. Fact Scenario
The Employer operates a large grocery store in Whitehorse. The work at the grocery store is mostly not safety sensitive, but some workers are required to occasionally operate forklifts when unloading cargo.
Workers at a large grocery store in Whitehorse recently succeeded unionizing. The unionization drive, however, was fraught. The Employer issued various anti-union messages. Most of these were lawful expressions of the Employer’s position regarding unionization posted on the bulletin board. Verbally, however, the owner and other managers made various threatening statements to workers, suggesting that the store would shut down if a union was established.
The union filed a ULP complaint against the Employer and one worker, Beth, testified about these statements. Beth is one of the workers who occasionally operates a forklift. In the course of the hearing, it became clear that Beth was the lead organizer. The CIRB found that the Employer had engaged in an unfair labour practice by making these statements to workers and ordered it to cease and desist. Ultimately, the parties went on to bargain a first contract.
Beth has various health issues that cause her chronic pain. She uses medical marijuana to treat these. The Employer is aware of this. To the Union’s knowledge, Beth is the only employee who relies on medical marijuana.
Recently, the Employer unilaterally introduced a drug and alcohol policy that permits the Employer to test employees if it suspects that they are impaired at work.
Beth is upset – she feels she is being targeted because of her union activity and is concerned about no longer being able to rely on marijuana for her pain.
What options does the Union have to respond to this policy? What type of proceedings can the Union initiate, and at which fora? 5/23/2023 27<br>
slide28. Thank you 5/23/2023 28 William Clements
wclements@koskieglavin.ca
www.koskieglavingordon.com<br>