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 February 13 2018

Professor Emeritus Roy Adams (McMaster) has been a dogged advocate of the movement to treat labour rights as human rights for many years.   His work has been cited regularly by the Supreme Court of Canada, particularly during the recent revisitation by that Court of the scope of Freedom of Association under the Charter of Rights and Freedoms.  In 2015, the Court ruled in the landmark S.F.L. v. Saskatchewan decision that the “right to strike” is protected by freedom of association.  It will take many years to fully unpack the implications of this decision and the scope of the right to strike.

In a recent editorial in the Hamilton Spectator, Professor Adams defended the right of college teachers to strike (which I discussed in an earlier post), without interference from the government, against commentaries arguing for the curtailment of the right of college (and by inference many other public sector workers) to exercise the Charter protected right to strike.  This Guest Blog is a revised and updated version of the Spectator piece.

Here is a pdf version of the Guest Blog.

The Ontario College Teachers Strike and Fundamental Human Rights

By

Roy J. Adams

(Professor Emeritus, McMaster University and Ariel F. Sallows Chair of Human Rights Emeritus, University of Saskatchewan)

In its editorial on the Ontario College Teachers’ Strike, the Hamilton Spector stated that “the system failed thousands of college students” and “It must not do so again.” The editors characterized the strike as having a “devastating fallout for countless students” suggesting that college teacher strikes ought to be banned somehow.

Professor Roy Adams on the Right to Strike

The editors also stated that many Ontarians “blame” the government for the strike which they tepidly defended by stating that the strike was legal. They made no attempt to explain why the strike was legal and why the government should have been commended, not blamed, for honouring the right of college teachers to strike.

It would have been appropriate for them to remind Ontarians that the Supreme Court has recently affirmed the right to strike as both a fundamental human right and a constitutionally protected right. In its Saskatchewan Federation of Labour decision the Court reiterated the position that it made clear in its Health Services decision of2007 that Freedom of Association, of which the right to strike is an inherent aspect, is essential in realizing the Charter values of “human dignity, equality, liberty and respect for the autonomy of the person and the enhancement of democracy.” All Ontarians, indeed all Canadians, are entitled to know that the rights to organize, bargain and strike have been affirmed globally as human rights by nearly all of the world’s nations including, prominently, Canada. These rights are not simply a political choice that may be given or taken away according to the whim of the party in power. They are no less sacred in the eyes of the world, in the eyes of the Supreme Court, than the right to equity in employment that is frequently, and rightfully, defended or commended by the press.

Without the right to strike working people are vulnerable to arbitrary, dehumanizing behavior by employers such as the stripping of benefits from low wage workers in response to the rise in the minimum wage in Ontario. Without the right and the mechanism to bargain, labour is reduced to the status of commodity to be exploited as the boss sees fit. Without that right, labour as a movement is weak and cannot stand as a force against the inexorable growth in inequality that, as Oxfam International has recently reported, has seen the wealth of Billionaires grow by an average of 13% a year since 2010. Without a strong bulwark to stand against it, that mudstorm is leading us back to the undemocratic, class-based oppression of the past.

The International Labour Organization has been charged by the world community to establish, promote and defend the rights of labour to the benefit of all humanity. Towards that end the ILO has developed a set of standards regarding the right to strike. The fundamental principle is that strikes must be honoured for all workers except those in occupations so critical that withdrawal of their labour would harm “the life, personal safety or health of the whole or part of the population.” Police, the military and hospital workers are essential. Teachers, the ILO has emphatically declared in the course of commenting on several cases including many from Canada, are not.

That does not mean that students who are harmed by education strikes do not matter. They do and we should seek to put in place systems that result in few education strikes. But education strikes do not endanger life, health or safety and so must be honoured for the greater good that results from respect for fundamental worker rights. Indeed, it is likely that the Ontario government’s back-to-work order  was unconstitutional.

If the Ontario government cannot legally and ethically impose a no-strike system on college teachers, it may negotiate such a system. Arbitration in one form or another is a viable alternative even though it has a number of side-effects unwanted by one side or the other. But, for college teachers, arbitration must be negotiated not imposed.

It has been my experience, knowing teachers at many levels and being one myself, that student-welfare is high on the priority list of educators everywhere. With good will on both sides a solution respectful of students, teachers and an empowered working class capable of defending democratic values is there to be found and implemented.

Issues for Discussion

Professor Adams was responding to commentary that argued in essence that the right to strike should be curtailed when it comes to public sector workers, including those workers who do not perform “essential services”.  Do you believe that there is something fundamentally different about public sector workers that justifies a government restricting or even abolishing their right to strike?

If you have studied the Saskatchewan decision, do you believe that “back to work legislation” enacted by the Ontario government would have been ruled unconstitutional?  What additional information, if any, would like to know before answering that question?

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A headline in the National Post today proclaims that a waitress fired for “not smiling enough” was reinstated “by court”.  Reminds me of a case I worked on in the 1990s when a  Walmart employee was disciplined for clapping off beat during the mandatory morning Walmart chant.

A Quebec Mystery Solved?

My employment law students should be raising a suspicious eyebrow over that headline.  It raises a potential employment law mystery:  How could a court reinstate a nonunion waitress with 6 months’ service who was terminated for not smiling enough?

Let’s try to unravel the mystery (input from Quebec employment law experts welcome!).

First some back story to flesh out the mystery.

“Courts” in Canada, even in Quebec, do not generally reinstate employees who have been terminated, even when the reason for termination is completely asinine.   There is a handful of common law decisions where courts have reinstated dismissed employees in unique circumstances, but those are exceedingly rare.  Courts generally do not enforce specific performance of an employment contract, meaning that they do not order employers to re-employ an employee after the contract has already been terminated.  Instead, courts order damages for breach of the employment contract, usually measured by the loss of wages and other amounts that the employee would have earned had the employer provided the employee with the legal required amount of notice of termination.   As a general rule, an employer can terminate an employment contract for any or no reason at all, provided they provide the employee with notice of termination.

However, exceptions exist.  One exception relates to unionized workplaces.  Unions invariably negotiate “just cause” for discipline and discharge clauses into collective agreements  and collective bargaining statutes confer authority on labour arbitrators to reinstate unionized employees terminated in contravention of those clauses.  So unionized employees do frequently get their jobs back when they are terminated without “just cause”.  But most waitresses are non union and the article makes no mention of a union.  So we can assume she is not covered by a collective agreement.

Another exception to the general rule that employers are not ordered to reinstate terminated employees in Canada relates to terminations that violate statutes.  As explained in Chapter 23 of The Law of Work, there are two types of statutes that provide for reinstatement of terminated employees.

The first type I describe as terminations contrary to public policy.   Lots of statutes prohibit employers from terminating employees for certain reasons deemed contrary to public policy.  Human rights statutes are an example, which prohibit termination based on certain discriminatory grounds, such as race, religion, gender, age and other “prohibited grounds”.  Since a termination based on discriminatory reasons is contrary to public policy, human rights tribunals are given authority to reinstate employees fired for discriminatory reasons.

Similarly, labour relations boards have authority to reinstate employees terminated for supporting unions.   And most employment-related statutes include anti-reprisal sections that prohibit employers from terminating employees who attempt to enforce their statutory rights and provide the remedy of reinstatement to enforce these provisions.

The second type of statutory protection prohibits employers from terminating employees without just or good cause (“unjust dismissal provisions”).  These provisions are the statutory rough equivalent of the unionized “just cause” protection, but they apply to non-union employees.   “Unjust Dismissal” provisions exist in only three Canadian jurisdictions:  the federal jurisdiction, Nova Scotia, and you guessed it:  Quebec.

Section 124 of Quebec’ Act Respecting Labour Standards prohibits employers from terminating employees with more than 2 years service without “good and sufficient cause” and Section 128 of the statute empowers the Labour Tribunal  to reinstate the employee.

When we read the National Post story closely though, it appears that this was not an “unfair dismissal” case at all, because the waitress had only been employed for 6 months. Section 124 does not apply to her.

Therefore, although the story does not make this clear, the decision must be one that falls into the category of “terminations contrary to public policy”—she was terminated as a reprisal for insisting on payment of back wages owed, contrary to Section 122 of an Act Respecting Labour Standards.   The Post article notes:  ”Daunais filed a complaint to the tribunal, claiming she was fired after asking for back pay owed to her”.   That makes sense.   This was an anti-reprisal case, not a Section 124 unfair dismissal case.  I think.   The Tribunal (not a court) did not believe the employer’s argument that the employee was fired for having a bad attitude.  Rather, the Tribunal accept the employee’s argument that she was terminated for insisting the employer comply with the statutory rules regarding payment of wages.

Mystery solved?

Issue for Discussion

As noted in this post and more fully discussed in Chapter 23 of The Law of Work, only three Canadian jurisdictions include “unjust dismissal” provisions that require employers (in limited circumstances) to have a valid reason to fire an employee.  In all the jurisdictions, nonunion employers do not need to demonstrate any reason for terminating an employee.  They just need to provide notice of termination.

Do you think that the other Canadian provinces should follow the lead of Quebec, Nova Scotia, and the federal government and enact “unjust dismissal” provisions?

What are arguments for and against these provisions?

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Arbitrator Strikes Down Tech Coal’s Random Drug & Alcohol Testing Policy

February 1 2018

This week, a senior arbitrator in British Columbia ruled that Tech Coal’s random drug and alcohol testing policy violated the collective agreement with the United Steelworkers and ordered the testing to stop.  Here is a story from the CBC on the decision.  This is the latest in a series of decisions ruling that random drug and/or alcohol testing policies interfered with employee privacy rights protected by collective agreements, including the 2013 decision of the Supreme Court of Canada in Irving Pulp & Paper.

As discussed in Chapter 43 of The Law of Work: Complete Edition (“The Collective Agreement”), labour arbitrators deal with these testing cases through the lens of the so-called “KVP Test”, which requires that rules promulgated by a unionized employer be “reasonable” in all of the circumstances.  To meet this standard, employers must be able to demonstrate that there is a serious workplace problem related to drug and alcohol use and that there do not exist other means to address the problem that impinge less on employee privacy rights.  Tech Coal was unable to demonstrate this and therefore their testing policy was struck down.

Here is Arbitrator Kenzie’s full decision.

And my thanks to the union’s lawyer, Rob Champagne, for proving Law of Work blog with his executive summary of the decision, which you can find here.  I can’t describe the decision any clearer than this, so I will leave my post at that.

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In a moment of insanity, I agreed to teach a weekend long crash course in Employment Law to help prepare HRM professionals for the new mandatory legal knowledge exams required to obtain the CHRP/CHRL designations.  The course will be held at York University on April 14-15 2019 and will be hosted by the School of Continuing Studies.

Students will receive a copy of my textbook The Law of Work: Complete Edition (a $130 value, and with an autograph, it will be priceless!)

Here is the registration and information page.

The course will  focus on the content emphasized in the exams, including the Common Law  of Employment (employment contract law and tort law), and Regulatory Law (especially employment standards and human rights, with some occupational health and safety as well).  I will be using the text as well as a series of helpful handouts to assist the attendees to quickly understand how the laws work.  I have a super smart Osgoode Hall law student preparing a mock multiple choice exam that students can do to test their knowledge.

Although the course is being marketed as an exam prep courses, frankly I think it will be really useful to anyone interested in a refresher on key elements of work place law in Ontario.  We are capping numbers, so if you are interested, I’d recommend enrolling quickly.

Hope to see you there, David

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A central premise underlying Canadian collective bargaining law is that employees should have the right to select both (1) whether to join a union and opt for collective over individual bargaining and (2) which union they want to represent them.  The second choice is limited in the “Wagner-style” model we use in Canada and the USA by the “majoritism” and “exclusivity” principles:  to obtain the right to represent any employee, a union must establish that it represents a majority of employees in an appropriate bargaining unit.  If a union represents a majority of employees, then the law bestows on that union a right to be the exclusive representative of all of the employees in the bargaining unit.  Majority rules.

Our labour laws regulate when a union can apply to represent employees in order to avoid continuous applications for certification by unions.  If the employees are already represented by a union, and there is a collective agreement in effect, then another union cannot apply to displace the existing union (sometimes called a “union raid”) except during certain specified times near the end of the collective agreement, known as the “open period”.   All of this is explained in Chapters 39 (The Unionization Process) and 46 (The Regulation of Unions:  Legal Status, Duty of Fair Representation, and Decertification) of The Law of Work: Complete Edition.

Therefore, an existing collective agreement can prevent an application by a union to represent workers.  Sometimes, employers attempt to use this rule to avoid unionization attempts by real, independent unions by encouraging or facilitating “voluntary recognition” with a fake,  non-independent (employer dominated), or more employer-friendly union.

This is what happened in a recent decision from Alberta called Brenda Stratford Foundation.  On January 19, a union certification vote was conducted but the ballots were sealed because the employer argued that the employees were already represented by other unions.

Facts

The Alberta Union of Provincial Employees (AUPE) applied to represent all non-managerial employees of a long-care facility that operated out of two buildings.   The employer responded by arguing that the application was “untimely” because the employees were already covered by existing collective agreements.   The parties to those alleged agreements were the employer and two “Employees’ Associations”.  The employer alleged that it had “voluntarily recognized” the associations and entered into collective agreements with them.

The facts disclosed that the “presidents” of the two employee associations held poorly attended meetings with employees and ask them about their concerns.  The presidents would then meet with the employer and explain the concerns.  The employer would then tell the presidents what it was prepared to give the employers and the presidents took those information back to the employees in another poorly attended meeting and sometimes the presidents would also speak to employees on the work floor.  Agreements were then signed.  The agreements were considered confidential and employees were not permitted to see them (!).

AUPE argued that the associations were not real unions, and that they did not represent a majority of the employees in the bargaining units and, therefore, that the agreements could not act as a bar to an application for certification by a real independent union.

Decision

The Alberta Labour Board focused on the question of whether the associations held majority support at the time the employer voluntarily recognized them.  Although voluntary recognition is permitted in Alberta (as in all Canadian jurisdictions except Quebec) as an alternative to the statutory union certification process, voluntary recognition still requires majority employees support.  The Board wrote:

Employees can provide representational authority through the Code’s certification process. If, instead, voluntary recognition is claimed (as it is here), authority to represent employees remains equally important and it must be shown through some other means.

In this case, there was no evidence that a majority of employees in the bargaining units supported the associations.   In Alberta (unlike in Ontario and Manitoba), the law does not require a collective agreement be ratified by a majority of employees to be effective.   A ratification vote on the supposed collective agreements was not taken here and so there was no vote based evidence of the level of employee support for the associations or the agreements.  Moreover, the peculiar practice of keeping the agreement confidential suggests that associations were not in fact representing the employees in bargaining at all.

Therefore, the associations are not “unions” and the agreements they entered into were not collective agreements.  In the result, the associations and their agreements with the employer could not act as a bar to the application for certification by the AUPE.  The Board ordered that the ballots be counted.

Issues for Discussion

Voluntary recognition is permitted in most jurisdictions in Canada.  This process permits an employer and union to bypass the usual union certification process that requires a union to prove to the government that it represents a majority of employees.  However, a voluntarily recognized union must still have the support of a majority of employees.

1.   How can a voluntary recognized union prove that it had majority employee support at the time of the agreement?

2.   Do you think governments should continue to permit voluntary recognition, or should all unions be required to be “certified” in order to represent employees in Canada?

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Here’s a reminder to scholars and graduate students to consider submitting a paper for the inaugural Law of Work Best Paper Award, which will be awarded at the annual conference of the Canadian Industrial Relations Association in Montreal from May 2-4.

Chief Justice McLachlin and Justice Lebel will receive the Freedom of Association Award at CIRA this May

Also, CIRA has announced that the recipients of the second annual Freedom of Association Award at this same conference will be recently retired Chief Justice Beverly Mclachlan and Justice Louis LeBel.  What a treat it will be to meet these two great jurists and (hopefully) hear some reflections on labour law and the Supreme Court.

Here is the call for papers.

Submissions are due by February 27 and final papers to be considered for the award are due by March 12.  Here is the description of the Law of Work Award:


LAW OF WORK AWARD

The Canadian Industrial Relations Association is pleased to announce the creation of a new award recognizing exceptional scholarship in the area of Canadian employment and labour law. A gift from Dr. David Doorey, Associate Professor at York University, Director of the School of Human Resource Management, and Director of the Osgoode Hall Law School PDP LLM in labour and employment law permits CIRA to award $500 to the best paper submitted to the annual conference in the area of the law of work. The first Law of Work Award will be presented at the annual CIRA conference held at the University of Quebec in Montreal on May 2-4, 2018. The Law of Work Award is CIRA’s distinction given to the best paper presented at the annual conference. All pre-tenure members (graduate students, post-doctoral and pre-tenure faculty) are invited to submit a full unpublished paper that will proceed through a blind review process to determine acceptance for presentation at the conference and the winner of the competition. Members interested in submitting a paper for this award should check the annual conference website for details. All authors of the paper must meet the eligibility requirements. Submission must begin with a cover page containing the title and an abstract of no more than 300 words outlining the purpose of the paper, the methodology used, and main conclusions, be in 12 point font, double-spaced, in APA format and not exceed 10,000 words inclusive of references but excluding abstract and appendices. Submission in French or English are permitted.

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Happy new year!

This story from the CBC on a Tim Horton’s franchisee penalizing its employees by taking away a list of contractual entitlements and blaming it on the new minimum wage is just too precious to ignore.  A similar story came emerged about Sunset Grill.  So it will be the subject of my first blog entry of 2018.

At the outset, let’s note that these media stories wherein an employer proclaims that it is breaching employees’ contracts “because of” a new minimum wage law they disagree with are total fluff.  Those of us with long memories of labour law

Tim Hortons: Penalizes employees in response to new Minimum Wage law

recall that whenever laws are enacted to help low income workers, there will be employers who see an opportunity to grandstand and blame the law for all sorts of economic ills.  This is an age old strategy to undermine the legitimacy of the legal agenda and the ruling political party they hope is replaced in the next election.  Unions do the same thing with anti-union laws, although of course unions do not possess the same power to make harmful unilateral changes to working conditions  as employers.

The problem with these stories is that there is no attempt by the reporters to investigate the back story and the truthfulness of the claim which is so obviously self-serving, anecdotal, and politically motivated.  Where is the investigation of the claim:  What are the revenues and profits of the business?  How much do the owners pay themselves?  Have they given themselves raises recently?  What factors unrelated to the minimum wage affected the decision?  And so on.  Without this backstory, a business’s claim that it is gutting employee benefits “because of” a law they disagree with passed by a government they would like to see replaced is an empty, self-serving cliche that the media should ignore.

Then there are the various interesting legal issues that arise from this particular Tim Horton’s story.  Here’s a quick off-the-top-of-my-head discussion of a few.

Constructive Dismissal

Firstly, what the employer is doing here is almost certainly a breach of the employees’ contracts.  As a general rule, an employer cannot just unilaterally start changing conditions of employment without the consent of the employee.  To state the obvious, there is a contract that prevents this.  If breaks have always been paid, and if the employer has always paid 100% of benefit costs, then these are contractual entitlements that cannot be unilaterally stripped without running afoul of the contract.  I haven’t seen the written contracts, so it is always possible there is some sort of term in there that makes these benefits at the sole discretion of the employer.

Presuming that the stripped benefits are contractual entitlements, then the employer is announcing its intention to breach the contracts.  Here’s a list of the employee benefits the employer announced in a letter to employees that it would be unilaterally cancelling :

* Paid breaks

* Incentives formally paid on employee birthdays

* “Day off with pay after 6 months of not calling in are cancelled” [not even sure what that means]

*  Employer paid benefits (now employees must pay part of the expenses (50 to 75%) themselves)

An employee quoted in the story commented that the benefits are an important part of the overall compensation package since the pay is so low.

In total, considering the job as a whole and how crappy the employees were paid to start, do you think that the employees at this Tim Horton’s store have a good case for constructive dismissal?  As we learn in Chapter 15 of The Law of Work, a constructive dismissal occurs when an employer commits a breach of contract that is fundamental and that the employee treats as having terminated the employment relationship.  The important question is whether the breach is “fundamental”.  What do you think?

Of course, to make a constructive dismissal claim, the employee would need to quit and either file an ESA claim for termination and possibly severance pay, or file a wrongful (constructive) dismissal lawsuit in court.   In either case, the employee is seeking damages for the termination of employment, but they still lose their job.

Unlawful Reprisal

Here’s a fun one for class discussion.   The Employment Standards Act, like other work-related statutes, includes a “no reprisal” section.   It is found in Section 74 and it reads in part as follows:

No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

(ii) makes inquiries about his or her rights under this Act,

(iv) exercises or attempts to exercise a right under this Act,

If an employer violates this section by punishing employees for making inquiries, the remedy can include “make whole” orders, which presumably would include an order to reinstate any benefits unlawfully stripped from employees, and reinstatement, if an employee is terminated for making inquiries, as well as a fine.

Imagine one of the Tim Horton’s employees had made an inquiry about whether their wage would go up after Bill 148 was enacted (which is very possible), and the employer had responded thus:

“Yes, but in exchange we are unilaterally eliminating your paid breaks and we are no longer paying the full cost of benefits, and there will be other cuts to employee entitlements too.”

When the employer then makes the changes (in violation of the contracts), do the changes amount to an unlawful “reprisal”?

The government might have avoided these situations by including a clause prohibiting employers from penalizing employees by removing contractual entitlements that existed before Bill 148 came into force.  For example, equal pay provisions prohibit employers from reducing men’s pay to create equal pay.  That same idea could have been used here.

Conspiracy?

The letter from the Tim Horton’s franchise owner includes a curious admission. After announcing that negative changes are coming “due to” the increase in the minimum wage, the letter continues:

“The decisions of the following are the results of intense discussions with management and numerous small business owners in our area and other franchise owners.”

Interesting.  I would like to know what these discussions entailed.  If a single business decides to increase prices or scale back employee entitlements in response to an increase in costs (including wages), then that is fine (subject to contractual and statutory restrictions).  However, if multiple businesses come together and agree on a coordinated strategy, then different rules may apply, including rules about conspiracy and price-fixing.  To be clear, I have no evidence other than this curious admission in the Tim Horton’s letter (and the fact that several Ontario businesses have already made claims that they are cutting employee benefits in response to a law that has been in place for a mere 5 days) to suggest that there is a coordinated agreement in place.

Hypothetically though, what if a bunch of business owners got together, perhaps with their industry lobby, and agreed that the minimum wage law is bad and needs to be publicly attacked and undermined.  So they agree to a strategy whereby they will breach employees’ contracts by cutting benefits, and raise prices, and then publicly blame the changes on Bill 148.

Does that scenario bring us into the realm of the tort of conspiracy to injure?  We would have an intention to injure employees (unilateral gutting of employment benefits) by unlawful (breach of contract) means.   Fun assignment:  head to CanLII and search up “conspiracy to injure” cases to learn how this tort is applied in Canada.  Labour law students will be familiar with the historical use of civil conspiracy by courts and employers to attack workers who joined together with the object of pressuring employers to raise wage rates and lower working hours.

Does an agreement amongst “numerous small business owners and other franchise owners” to raise prices (and publicly blame Bill 148) raise Competition Act issues, similar to the recent Loblaws’ bread price-fixing scandal?  What if all coffee franchises in an area agree to raise prices by 5%?

We don’t have enough information right now about what is being discussed in the inner circles of industry to know whether conspiracy or price-fixing issues are present.  But pay attention to this issue in the weeks to come.

One last point about Franchises

Finally, the Tim Horton’s letter also blames corporate Tim Hortons (the franchisor) for not helping franchisees.  Presumably this means by adjusting the terms of the franchisee agreements in some way to help offset the increased labour costs.  Interestingly, this argument supports the claims of labour activists in the lead up to Bill 148, that a real problem causing low wages in the service sector is the franchisor model itself.  Franchisors have significant bargaining power over the profit margins of franchisees.   Therefore, many argued for a new labour law model that forced the franchisors to the bargaining table or enabled industry wide collective bargaining.   The Liberals did not go in that direction, and you’d think that the franchise industry would be thankful.

However, by blaming the franchise model, the Tim Horton’s franchisee in this case draws renewed attention to this problem.  If the problem is that the franchise agreement cuts margins so low that some franchisees will have trouble with wage increases (and I’m not saying that is the case with this franchisee), then a public policy of increasing low wages must include looking at the terms of franchise agreements with the aim of removing this obstacle.

Wrap Up

So many fun issues with this one!   Given the growing backlash against Tim Hortons on social media after this story broke, business may be having second thoughts about this strategy of politicizing their decisions to gut employee benefits by blaming a law that remains popular with working folks.  Certainly the Liberals are loving it, as demonstrated in this op-ed by the Premier.    How great for them that they can so publicly stand up for the little guy.

Let’s keep our eye on this story in the coming weeks and months.

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I have written a couple of explanatory posts (see here and here) on Ontario’s new Bill 148 legislation, which amends parts of the Employment Standards Act, Labour Relations Act, and Occupational Health and Safety Act.

This post arises from a quick chat I had the other day with Ferdando Reis, who is Director of the Legal Department for the United Food and Commercial Workers in Canada (and an alumni of the Osgoode Hall Law School specialist LLM in Labour and Employment Law for which I am the Director — PLUG:  new cohort starting in fall 2018…).   Fernando and I were chatting about how Bill 148 deals with employees who work for employers operating in the “building services” industry, and how it is similar yet slightly different than legislation (Bill 40) enacted to deal with the same issue by the Bob Rae NDP government of the early 1990s.

Bill 148 adopts almost verbatim the text from the 1992 legislation in expanding the scope of the successorship provisions in the Labour Relations Act.  However, the treatment of employees under the ESA is different under Bill 148 than it was in the early 1990s in regards to what happens to employees when a service contract is transferred from one provider to another.  The result I think is that Bill 148 both makes it easier for building services employees to unionize, and actually creates a strong incentive for them to do so.

Let’s walk through this.   Let me know if you think I’m missing something or my reading of the law is incorrect.

Bill 148 Includes Provisions Targeting Vulnerable Building Services Employees

Background

Firstly, building service employers include all those companies that provide food services, cleaning services, and security services for and in buildings across the province.  These companies usually get business contracts through a tendering process.  Companies bid on the jobs and the building owner or property manager awards the contract to the winning bidder.  Legal issues arise because the contracts are sometimes re-tendered, or the contract provider is otherwise replaced for one reason or another by a new contractor.

From an employment law perspective, the question has been what to do about the employees who performed the work at the premises for Contractor A when the contract is then transferred to Contractor B.   Should Contractor B be required to retain the employees of Company A?   If not, which company should be on the hook for termination pay if as a result of the transfer of the contract, the original employees who performed the work for Contractor A no longer have jobs?  What if Contractor A is unionized and governed by a collective agreement?  Should Contractor B inherit the collective agreement and the employees of Contractor A who are protected by it?  Both the Employment Standards Act and the Labour Relations Act have something to say about these questions.

How Bill 148 Regulates the Building Services Industry

Let’s consider first how Bill 148 alters the Labour Relations Act in relations to employees in the building services industry.

Bill 148 recognizes that employees who work for companies that provide cleaning, food, and security services in buildings are vulnerable and difficult for unions to organize, and therefore gives them an easier route to unionization than most other employees in Ontario.   A new Section 15.2 of the Labour Relations Act will permit unions organizing these workers to opt for a one-step, card-check model of certification rather than the more challenging two-step mandatory ballot model in effect for most employees.  The new requirement for employers to provide unions with employee lists with contact information will facilitate contact with these workers as well.  So Bill 148 intends to the road to unionization easier for building service employees.

Importantly, Bill 148 also amends the “successor employer” provisions of the LRA by reinstating an old law originally enacted by the Bob Rae NDP government as part of Bill 40 way back in 1992.   I recall those days, because I was working as a summer law student in the legal department of United Steelworkers in Toronto at the time, which represented a bunch of security guard companies.  That law (which appeared as Section 64.2 of the 1992 LRA) deemed a transfer of a contract from one service provider to another to be a “sale of business”.  For example, if Contractor A had a contract to provide security or cleaning services to a condominium building and then one day the condo owner decided to use Contractor B to provide the services instead, the old Section 64.2 deemed Contractor B to be the successor employer, provided certain conditions were satisfied.

That law addressed the fact that the normal successorship provisions in the Act did not capture the situation of a service contract with a unionized company being cancelled by the building owner or manager, and then re-tendered or re-assigned to a new services company.   Therefore unionized cleaners could lose their collective agreement coverage and job rights every time their employer lost a contract.  Sometimes employees of Contractor A were hired on by the new Contractor B, but under a brand new employment contract since the collective agreement did not carry over to Contractor B.

The NDP’s Bill 40 law, which like Bill 148 was intended to better protect vulnerable employees, legislated that the transfer by the property owner from Contractor A to Contractor B is a “sale of business”.   This meant that collective agreement between a union and

Bill 40 Enacted by Premier Bob Rae’s NDP in 1992 Provided Template for Parts of the New Bill 148

Contractor A carried over to Contractor B so that Contractor B became the employer party to the collective agreement; it stepped into the shoes of the predecessor employer for the purposes of the collective agreement and the employees’ previously employed by Contractor A also now became employees of Contractor B.  The legal reform created a measure of job security and collective agreement flow through for workers in the building services industry.

The new Bill 148 reinstates the old Bill 40 Section 64.2 almost exactly as it was written in 1992.  The new provisions will appear in Section 69.1 of the revised Labour Relations Act.  Here is the text:

69.1 (1) This section applies with respect to services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services.

Exclusions

(2) This section does not apply with respect to the following services:

1. Construction. 2. Maintenance other than maintenance activities related to cleaning the premises. 3. The production of goods other than goods related to the provision of food services at the premises for consumption on the premises.

(3) For the purposes of section 69, the sale of a business is deemed to have occurred, (a)  if employees perform services at premises that are their principal place of work; (b)  if their employer ceases, in whole or in part, to provide the services at those premises; and (c) if substantially similar services are subsequently provided at the premises under the direction of another employer.

(4) For the purposes of section 69, the employer referred to in clause (3) (b) of this section is considered to be the employer who sells the business and the employer referred to in clause (3) (c) of this section is considered to be the person to whom the business is sold. Successor rights, other service providers

The Employment Standards Act also deals with the situation of a building service contract being transfer from Contractor A to Contractor B.  Section 10 of the ESA provides (with some conditions which we needn’t worry about for our purposes in this post) that if the new contractor (Contractor B) takes over the service contract formally done by Contractor A, and it hires an employee of Contractor A to perform similar work at the same premises where the employee had done work for Contractor A, then the employment of that employee is deemed to be without interruption for the purposes of entitlements under the ESA.

Lastly, Section 75 of the ESA deals with what happens when Contractor B does not hire or retain an employee who formally performed worked for Contractor A.   It provides that Contractor B must comply with the termination and severance provisions of the ESA, subject to several exceptions.  Firstly, if the employee is retained by Contractor A, then the law does not treat them as having been terminated.  Secondly, there is an exception that relates to various circumstances in which the employee had not worked primarily at the premises where the transfer of undertaking had occurred during the 13 week prior to the transfer.  And, thirdly, Contractor B is relieved of the obligation to comply with the notice and severance provisions if the employee refuses a “reasonable offer” of a job from Contractor B.

Where Does This Leave Us?  

So to tie this altogether, let’s consider an example.

Assume Security Guard Company A (SGC-A) is unionized and has a contract to provide security services as BMO Stadium in Toronto.  Company A’s employees are covered by a collective agreement between the UNION and SGC-A.   One day, BMO Stadium tells SGC-A that has decided to switch security companies and that moving forward it will be using Security Guard Company B (SGC-B).   Under the new Bill 148 provisions, the collective agreement probably flows over from SGC-A to SGC-B and along with it, all the terms and conditions of employment and job rights employees had with SGC-A.    SGC-B cannot win the contract by costing in lower wages because it still has to pay the same wages as required by the collective agreement and retain Company A’s employees, provided the same or similar work is still being done at the same premises.  So, in short, thanks to Bill 148, the unionized employees of SGC-A now have job protection if their employer loses the contract to another service provider.

Now let’s change the facts slightly.   Instead of SGC-A being unionized, let’s assume it is a non-union operation.   In that case, when it loses the contract, the successorship provisions in the Labour Relations Act no longer apply.   We are now dealing with the common law regime and the regulatory regime (i.e. the ESA).   If SGC-A is nonunion, then its employees can be terminated when the contract is transferred from SGC-A to SGC-B.    Section 75 of the ESA requires SGC-B to comply with the notice if termination (and severance if applicable) provisions when the SGC-A employees are terminated, but those employees have no legal right to continue to do the cleaning work for SGC-B.

This is where Bill 148 veers from the situation under Bill 40 back in the 1990s.   When Bill 40 was in force, the Employment Standards Act had provisions requiring Contractor B in the scenario we have been discussing to “make reasonable offers of available positions to those persons” who had performed work at the premises for Contractor A.  Moreover, the offers needed to be made in order of seniority (length of service with Contractor A).  If you want to read the ESA sector in place back in the 1990s, here it is in PDF.

Bill 148 does not include such a provision, with the result that, unlike during the Bill 40 years, Contractor B today has no obligation to offer jobs to employees of Contractor A if Contractor A is a nonunion company.  This presumably creates a very strong incentive for employees of nonunion, building services employers to quickly join a union if the want to ensure a measure of job security when and if their employer loses a service contract.   It is not clear to me whether this outcome was the intention of the Liberal Party, or an oversight.

Issues for Discussion

Do you agree that the model for dealing with building services employees in Bill 148 creates an incentive for these employees to unionize?

Can/should unions use this scenario to their advantage in organizing campaigns in this industry?  How might they do so?

If so, do you think that was an intentional policy decision by the Liberals?

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Quick Bill 148 Summary of Employment Standards and OHSA Reforms

The new Bill 148 amendments to the Ontario Employment Standards Act are far ranging and important.  Bill 148 is the Liberals answer to what they recognize as growing precarity of work particularly at the lower pay and lower skill categories.  The extent to which Bill 148 will achieve its objectives will be debated for years and will take time to sort out.

The real test, as always, will be how and whether the new laws effect changes in the behaviour of the parties.   We will need to wait and see how the case law fleshes out some of the uncertainties and also how well the government is able to ensure compliance, which is always a big challenge in employment regulation.

Here is my quick summary of the key changes to the ESA and OHSA, with occasional commentary. I posted a commentary on the changes to the Labour Relations Act on my blog a while back, but I intend to write up a summary like this one so I have a unified summary.

Here’s a PDF, in case you care and want something easier to print out.

 Repeal of the Ridiculous Pre-Conditions Needed Before a Complaint Can Be Filed

 Let’s start with the repeal of one of the stupidest employment laws I’ve ever come across (and there have been a lot of stupid ones in my days!).   Bill 148 repeals Section 96.1 of the ESA, which discouraged employees (and ex-employees) from filing complaints by setting up a system that required them to first confront the employer with the allegation that the employer is breaking the law and then wait for a response from the employer.  The employee then had to demonstrate the Director of employment standards that the steps were taken, otherwise the Director would not assign a complaint to an employment standards officer.

I criticized this law way back in 2010 when it was first enacted in this post fittingly entitled “When Did Discouraging Workers from Filing ESA Complaints Become Public Policy in Ontario?”.   The Liberals argued that the law would encourage settlement of complaints before they became complaints.  The cynic in me argued that the real purpose was to reduce the number of new complaints coming in order to address the large backlog of cases.  Anyways, kudos to the Liberals for recognizing that a law they passed was bad policy and for doing away with it in Bill 148.

Simplifying of Related Employer Provision [Section 4(1))

The ESA permits the tribunal to treat two or more businesses or persons who are engaged in associated business activities as one entity that is jointly liable for obligations owed employees.  In the past, applicants for a common employer declaration needed to show that (1) there were two or more businesses involved, (2) that the applicant was employed by one of them; (3) that the businesses were engaged in associated or related activities, and (4) that the intent or effect of these related or associated activities was to defeat the intent and purpose of the Act.    Bill 148 repeals requirement (4).   These subtle change could have dramatic effects, depending on how the change is interpreted and applied.

This is because requirement (4) has been interpreted in the past as imposing an obligation on the applicant to show some sort of arrangement or to use the language that sometimes appears in cases, at least “something more” than just related or associated activities (see e.g. Cybernet Communications v. Francis  and the great subcontracting case Lian v. J. Crew Group] Now it appears that it will be enough to demonstrate associated activities alone in order to obtain a common or related employer declaration.  This requires demonstration of facts such as common ownership, common management, common financial control, common logo or company name, employee intermingling, asset transfer, and common market and customers.

The intriguing question is whether the new trimmed down definition of a common employer is sufficient to catch the relationship between franchisors and franchisees, for example.   You might recall that the two wise men who wrote the Changing Workplaces Review spent considerable time on the challenge of regulating working conditions in franchising that arise because the power, resources, and control often reside up the franchising chain rather than at the micro-level of the franchisee.  We will need to watch how this change to Section 4(1) impacts the development of the common employer jurisprudence, if at all.

Topics Related to Chapter 2 of The Law of Work:  The Law of What? Employment, Self-Employment, and Everything in Between

 Reverse Burden on employment status [new Section 5.1]

A new section 5.1 makes it unlawful for an employer to misclassify an employee as a non-employee. Until Bill 148, an employer who misclassified an employee as an independent contractor—and this happened a lot—would be ordered to pay any statutory entitlements owing to the employee.  Now the act of misclassification is an offence in itself giving rise to potential fines and penalties in addition to any back wages or other entitlements owed the employee.

The purpose of this change is to alter employer thinking. The new law creates an incentive for businesses to presume that workers are their employees unless they have a strong case for arguing that they are independent contractors.  To strengthen this incentive even more, Bill 148 also introduces a form of reverse onus when an “employer or alleged employer” claims that a worker is not its employee. The concept of an “alleged employer” is similar to the Australian concept of an “apparent employer” found in fair work legislation there.  It is a useful concept because it permits a worker to identify the entity he/she believes is the employer and then the burden shifts to that entity to establish that it is not the employer of the person. This addition presumably does not alter the test that the labour board will apply in assessing whether a worker is an independent contractor or an employee, but it does require the employer to go first and explain to the board how the worker fails to meet the definition of employee.

“Unpaid Interns” and Workers in Training

The much-maligned exception from the legislation for “persons receiving training” found in the old Section 1(2) is repealed. This exception excluded from ESA coverage workers receiving training from a non-educational institution when six factors were present.  Section 1(2) and the six conditions are discussed in Chapter 2 (Box 2.3] of The Law of Work, and so I will need to revise that material!   Under Bill 148, a person receiving training is an “employee”, unless the training is in accordance with an approved public or private college or university program.

Section 1(2) was the law that in theory permitted “unpaid interns” outside of university and college training programs.  It was widely abused by employers looking for free labour. I (and many others) argued for years that Section 1(2) should be repealed and that only ‘internships’ for which students receive credit towards their degree and that are part of a regulated and monitored educational program should be permitted. I also argued for a law requiring educational institutions to prepare a Code of Conduct setting out the conditions under which students can be asked to perform work that would be distributed to the students and businesses and approved by the state.

 Topics Related to Chapter 21 of The Law of Work:  Regulation of Wages and Pay Equity

Minimum Wage Increase [new section 23.1]

This change has attracted the most attention.   The minimum wage will increase to $14 on January 1, 2018 and $15 on January 1 2019.  Predictably, the business lobby has argued that thousands of jobs will evaporate because employers will start laying off workers to pay for the wage increase.  My favorite response to this age-old argument was presented by economist Jim Stanford, who bet his fellow economists $500 that job levels would increase in the year after the minimum wage is introduced.  When last I checked with Jim, no economist had taken him up on the bet.  Jim’s point was that job levels are determined by many factors of which the minimum wage is just one, and that no serious economist actually believes that the job levels will go down in Ontario because of the minimum wage, although many pseudo economists, business lobbyists, and non-expert media pundits try to persuade the public this will happen.

Call-In Pay, Cancellation of Shifts, and Right to Refuse a New Work Schedule Assignment [new Section 21.4. 21.5]

An employee “on call” who is not required to work or who works less than 3 hours is entitled to be paid for three hours.  I confess to being a bit slow on this language (maybe someone can help me).   The new law says the payment is payable to an “employee who is on call work [but] is not required to work”.  But then there is an exception saying that the payment is not required if “the employee who was on call was not required to work”.   Those two provisions seem to be contradictory, but I am probably missing something?

 A new Section 21.6 entitles an employee to 3 hours’ pay if an employer completely cancels a scheduled shift less than 48 hours before the shift is scheduled to commence, except if the cancellation is due to a force of nature or power failure (see conditions in Section 21.6(3)).  Section 21.5 permits an employee to refuse to accept a “demand to work” or to be on call that they were not originally assigned to work if the request or demand is made within 96 hours (i.e. 4 days).  Exceptions include when the request is to deal with an “emergency”, threat to public safety, or ensure an essential public service is delivered.

Equal Pay for Equal Work (Gender) [new section 41.2, 42(6)]

The provisions requiring equal pay for work that is “substantially the same” have been amended to clarify to that “substantially the same” does not necessarily mean “identical”.  This same definition applies to the new equal pay for equal work provisions based on employment status (see below).  I presume that the purpose of the clarification is to address a concern that adjudicators might be interpreting “substantially the same” too narrowly.  It remains to be seen whether it will make any difference in practice.

A new section 42(6) is also added that permits an employee who believes the equal pay for equal work provision is not being complied with to request a review by the employer.  The Liberals are still clinging to this belief that the law can facilitate dialogue between an individual non-union employee and the employer that will produce useful employment-related outcomes. If an employee makes a request, the employer must then either adjust the employee’s pay or provide reasons why the equal pay provisions are not being violated.  I’m not clear on whether an employer who admits under this new section that they were not in compliance with the equal pay provisions can then be fined or ordered to pay back wages, or whether the adjustment just starts from the point that the employer makes the change. Isn’t an agreement to raise the pay under this section an admission that the employer was in contravention of the law requiring equal pay for equal work?

Equal Pay for Equal Work (Employment Status and Temp Employees) [New section 42.1, 42.2]

This is potentially an important new law that comes into effect in April 2018.  Bill 148 attempts to address discriminatory pay practices based on “differences in employment status”, including differences in the number of hours worked and the term of employment (full-time, part-time, temporary, seasonal). The new provision essentially mirrors the equal pay for equal work provisions relating to gender (discussed above) in requiring equal pay between employees with differences in “employment status” when:

 (a) they perform substantially the same kind of work in the same establishment;

(b) their performance requires substantially the same skill, effort and responsibility; and

(c) their work is performed under similar working conditions.

As with the gender equality provisions, a big question is how the exceptions will be applied.  Those exceptions permit pay differentials based on seniority, merit systems, pay systems based quality or quantity of production, and the catch-all “factors other than sex and employment status”.

In the case of workers assigned to a company by a temporary placement agency, the only exception allowed is for differences based on factors “other than sex, employment status, and assignment employee status”.  “Difference in employment status” is defined as a difference in hours regularly worked or a difference in term including permanent, temporary, seasonal or casual status.  Think about this difference.  What is the effect, intended or otherwise, of removing from the equal pay law relating to employees assigned by a temp agency the exceptions based on seniority, merit pay systems, and pay systems based on quantity and quality of production?

Reprisals for Asking About Pay Rates For the Purposes of Equal Pay Provisions

There are two new sections added to the ‘no reprisals’ section of the ESA (Section 74(1)(a)).   Bill 148 makes it unlawful for an employer to penalize an employee for asking coworkers what they are paid or telling another employee what they are paid “for the purpose of determining or assisting another person in determining whether an employer is complying with the equal pay provisions in Part XII of the Act.  Parallel provisions are added in relation to disclosure of rates of pay at workplaces where temp workers are assigned (Section 74.12(1)(a)).

This is a weird one.   The obvious question to me is why an employer should ever be entitled to penalize an employee for discussing their pay. Shouldn’t the anti-reprisal law more generally prohibit reprisals against any employee for discussing their pay rate with anyone else?  The more information available about pay rates, the better functioning the labour market will be. That’s what labour economists say, anyways, and we all know how much politicians like to listen to economists.  And information about pay rates also shines a light on discriminatory or unfair pay practices.   It’s hard to think of a good public policy argument to support employers penalizing employees for discussing their pay rates with coworkers.  Can you think of any?

Topics Related to Chapter 22 of The Law of Work:  Regulation of Working Time

Vacation Entitlements and Vacation Pay [new Section 33 and 35]

The current ESA (s. 33) entitles employees to 2 weeks’ vacation per year worked.   Bill 148 retains 2 weeks’ vacation time for employees with less than 5 years’ service, but increases vacation time to 3 weeks’ after 5 years’ service.  Vacation pay continues to be calculated based on 4% of the employees’ earnings for the year for which the vacation is given for employees with less than 5 years’ service, but that amount increases to 6% for employees with more than 5 years’ service. This law clearly rewards service beyond 5 years.  Anytime an entitlement increases at a defined moment in the employees’ service length, a concern arises whether the law will create a perverse incentive for employers to terminate the employee before the entitlement kicks in.  Do you think employers may be incentivized to terminate employees before 5 years in order to avoid the additional vacation week?

Calculation of Holiday Pay [new Section 24(1)]

 Bill 148 changes the way that Holiday Pay is calculated, making it I think an easier to understand formula.  The amount of holiday pay is now calculated by taking the amount of regular wages earned over the previous pay period and dividing that by the number of days worked in that period.

Hours of Work and Scheduling Changes [new Section 21.2]

 A new section 21.2 introduces a requirement for employers to “discuss” with an employee who has at least 3 months’ service a request put in writing by the employee for a change in their work schedule or work location.  The employer must then notify the employee of their decision with reasons within a reasonable amount of time.  This is more of that Liberal “if-we-can-just-get-the parties-to-talk-to-each-other-lots-of-problems-will-be-solved” theology.   In my humble opinion, this law will have no impact whatsoever, and I don’t even understand why the government bothered with it.  An employee who feels comfortable asking for such changes will already make the request, and an employee who does not feel comfortable will not suddenly be emboldened by this new law, presuming they even know of its existence.

Three Hour Rule [New Section 21.3]

Bill 148 requires employers to pay at least 3 hours’ wages to an employee who reports for work and is sent home before 3 hours, provided that the employee regularly works longer than 3 hour shifts and was available to work longer.  There are exceptions when the reason the employee is sent home have to do with circumstances beyond the employee’s control, such as fire, electrical failure, lighting (but presumably not due to a lack of available work)

Personal Emergency Leaves

A surprising proportion of Bill 148 is devoted to changes to various leave provisions.  Here is a summary of the changes:

  • Unpaid Pregnancy leave in the case of a woman not entitled to parental leave (still birth or miscarriage) is extended from 6 to 12 weeks (Section 47(1)).
  • Unpaid Parental leave can now be taken no later than 78 weeks after the child is born (or adopted) (increased from 52 weeks (section 48)), and the length of parental leave entitlement increases from 35 weeks to 61 weeks if the employee also took pregnancy leave, and from 37 to 63 weeks if the employee did not take pregnancy leave.
  • The list of individuals for whom an employee can take unpaid family medical leave to care for is increased in Bill 148, essentially from immediate family to extended family (Section 49.1), and the amount of time that can be taken increases from 8 weeks to 28 weeks.
  • A new critical illness leave is introduced (Section 49.4) that extends to both critically ill children and critically ill family members and is available only to employees with at least 6 months’ service.   The leave is up to 37 weeks to care for a child and 17 weeks to care for an adult.  The employee must present to the employer a certificate from a qualified health practitioner.
  • The child death and crime-related disappearance leaves have been redrafted so that an employee with at least 6 month’s service whose child dies or disappears under circumstances in which it is probable that a crime was committed is entitled to up to 104 weeks’ unpaid leave (Sections 49.5, 49.6).
  • There is a new domestic or sexual violence leave provision that entitles employees with at least 13 weeks’ service to take a leave of up to 10 days and 15 weeks of leave with the first 5 days in a year being paid leave and the rest unpaid (Section 49.7).   The leave applies if an employee or child of employee experiences domestic or sexual violence or “the threat” of such violence and the leave is needed for a list of identified purposes.
  • The personal emergency leave entitlement in Section 50 was amended to eliminate the requirement that the employer have 50 or more employees.  This leave is available to employees who suffer a personal injury or illness or there is an urgent matter or illness to certain designated family members.  The maximum amount of leave is 10 days in a year and the first 2 days are now paid (provided the employee has been employed at least one week).

Topics Related to Chapter 23 of The Law of Work:  Regulation of the End of Employment Contracts

Notice of Termination to Temp Worker Whose Assignment Ends Prior to 3 Months

Bill 148 adds a requirement for temp agencies to give one week’s notice or pay in lieu to an assignment employee who is assigned to job expected to be 3 months or more but which is cut short, unless the employee engages in wilful misconduct, the assignment was “frustrated”, or the assignment was terminated due to a work stoppage (Section 74.10.1].  This creates a form of exception to the general rule that employees with less than 3 months’ service are not entitled to statutory notice.

Changes to Ontario Occupational Health and Safety Act

A new Section 25.1 is added to the “duties of the employer” part of the OHSA, which prohibits an employer from requiring a worker to wear “footwear with an elevated heel unless it is required for the worker to perform his or her job safely.”   Hhhm, anyone think of a job that is only safe if done with high heels?  There may be some, I presume, but none come to mind.  An exception is created for a performer in the entertainment and advertising industry.

Comments welcome!

Do you think any of the changes are wrong-headed?  Why?

Are there glaring omissions that you think the Liberals should have included?

In your opinion, have the Liberals succeeded in their stated goal of redressing precarious work practices in Ontario?

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November 16 2017

The college instructors represented by OPSEU have soundly rejected the College Employer Council’s proposed collective agreement put to them in a forced “final offer vote”.  The 5 week long strike continues, for now.  Here are some very quick thoughts about what happens next written immediately after the final offer vote results were announced.

Background

The Colleges used the final offer vote successfully to end a strike back in 2010.

College Instructors Overwhelmingly Reject Employer’s “Final Offer” (Photo Source: CBC)

As I wrote then, the final offer vote was successful by a narrow margin of 51%!  You can’t get much closer than that, and this result was a clear sign of a painfully divided bargaining unit.   Nearly half of voters rejected the employer’s offer.  This time, the employer’s offer was resoundingly crushed with a 86% No vote.   The Colleges very clearly misjudged the mood of the employees.

Employers have only once chance to use the final offer vote option.  The option appears in Section 17(2) of the Colleges Collective Bargaining Act.    Using the FOV option is risky for employers.  A rejected FOV can cause the workers and the union to further dig in their heels and create distrust and hostility in the bargaining room. When a FOV is soundly rejected, as in this case, an expectation arises among employees that the  employer will now improve its offer.  From the union’s perspective, any deal that fails to improve on the proposal that was rejected will be considered a huge failure.  The votes results also demonstrate that the willingness of the workers to continue their fight.

The overwhelming NO vote result may also have implications for the constitutionality of any back to work legislation the Liberals might enact, as discussed below.

The Origins of the Final Offer Vote Law

The “final offer vote” concept was  introduced in Ontario in the 1980s by a Conservative government at the same time they introduced the current section 47 of the Ontario Labour Relations Act, which allows for mandatory union dues checkoff clauses in collective agreements.  The right of employers to insist on a vote of their final offer was the quid pro qua to employers in exchange for the union benefit of union dues checkoff.  Employers use then FOV power when they believe the union leadership is blocking an offer that a majority of employees would accept if given the chance to vote.  Back in the 1980s, there was no law requiring unions to conduct ratification votes at all.  That requirement came later in the 1990s.  Remember that all the employer needs is 50% plus one of the votes.  This permits an employer to put forward an offer that it believes a slim majority will accept, whereas unions usually want a much broader level of acceptance.

The Back to Work Legislation Legal Minefield, and What Now?

The province has already signalled that it intends to meet and, as Premier McGuinty once said during the York University T.A. strike, “bang some heads together”.   The option of back to work legislation is a possibility.  Certainly the government will let it be known that it is considering it.  Often the mere threat of back to work legislation can be enough to provoke the parties to reach a deal because one side or the other, or both, would prefer to reach a deal than leave it to an arbitrator to impose one.  In the York University T.A. strike a few years back, the Liberals introduced back to work legislation and the parties quickly reached a deal to avoid it.  That could happen here.

However, in the aftermath of the Supreme Court of Canada decision in Saskatchewan v. SFL and the 2016 decision in Canadian Union of Postal Workers v. Canada , the Ontario government has been rightly cautious about whether back to work legislation in this case will past constitutional scrutiny.   The Canada Post decision struck down back to work legislation enacted by the federal government and so provides a good overview of the legal issues that could arise if the Ontario Liberals were to enact back to work legislation to end the colleges strike and that legislation were challenged.  If you interested in why back to work legislation is a minefield read Canada Post, but note that the legislation in that case had several glaring problems caused by the Harper Conservative’s ideological and obviously non-neutral approach to collective bargaining intervention.  I suspect the Liberals would be smarter.

Those earlier cases recognized that the Charter of Rights and Freedoms protects a right to strike. [The development of the Charter's application to collective bargaining law is traced in Chapter 48 of The Law of Work: Complete Edition, written by myself and Ben Oliphant].  This means that all back to work legislation must satisfy the constitutional threshold for government intervention in free collective bargaining.  

Back to work legislation violates freedom of association if it “substantially interferes” with a meaningful process of collective bargaining, which occurs when the legislation disrupts the balance of power between employees and employer.

In the colleges scenario, the outcome of this vote provides indisputable evidence that the union has overwhelming employee support for it to continue collective bargaining towards a deal that better addresses their interests. The union would like to return to the bargaining table backed by the strong winds of that support.  If the government interjects now to end bargaining and refer the dispute to an arbitrator, OPSEU will have a good argument that the legislation sucked the wind from its sails and neutralized its bargaining power.  If negotiations now resume for a short period, and the employer offers nothing new because it hopes and suspects the government will intervene, any subsequent back to work legislation may be perceived as having shifted the balance of power in the employer’s favour.

This is not an easy situation for a government to craft legislation to end the strike and that would survive constitutional scrutiny.  The trick likely would be to craft legislation that would be saved by Section 1 of the Charter as being demonstrably justified in a democratic society.  This requires the government to draft legislation that impairs the employees’ right to collective bargaining as little as possible and that somehow addresses the interference with bargaining power caused by the back to work legislation without exasperating it.

The back to work legislation used by the federal Conservatives in the Canada Post case was struck down and was not saved by Section 1 because, among other reasons, the court ruled that the “final offer selection” model of interest arbitration it imposed in lieu of the right to strike preferred the employer’s interests and thereby altered the bargaining power of the parties.  The Liberals would need to craft an arbitration scheme that is truly neutral and independent.  That may be possible, but it is not the preferred route for the government.  In Canada Post, the court accepted that continuance of mail delivery was a pressing and substantial objective, but it may not be as clear that the resumption of a college term meets the pressing and substantial objective standard in Section 1 jurisprudence.   Certainly, college education would not meet the standard of “essential service” recognized in international law to justify interference with the right to strike, which is limited to services without which people would be put at risk of serious harm.  In short, it is far from clear that back to work legislation applied to end the college strike at this point could survive a Charter challenge.

Due to the complexity of crafting back to work legislation today, the Liberals would like to avoid having to enact back to work legislation.   I suspect that they are hoping instead that the parties will resolve the outstanding issues or agree voluntarily to refer them to some form of dispute resolution.  The parties have already agreed to refer some of the contentious issues to a committee.   It remains to be seen whether the two sides can agree on a solution for resolving the remaining issues that ends the work stoppage without government intervention.  As noted above, a common government tactic is to threaten or even enact back to work legislation that one or both parties will find unfavourable and thereby create an incentive for the parties to reach a deal in order to avoid the legislation.  Watch for that.  The interesting twist now, because of the recent Charter cases, is that if the back to work legislation favours the employer, and that causes the union to cave and settle to avoid the legislation, this fact can then be used in the evidence in the Charter challenge that follows.

I recklessly predicted in this Toronto Star article last week that this strike would eventually be resolved by some form of agreement to refer the outstanding issues to some form of dispute resolution.  But I have been wrong before.

Any other predictions on what will happen next?

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