A win for employers: Supreme Court rejects union’s effort to obtain right of consultation in accommodation process

by John Craig and Matthew Larsen

Do unions have an independent legal right, separate and apart from their collective agreement rights, to be involved in every unionized employee’s accommodation request? This question was answered earlier this year by the British Columbia Court of Appeal, which ruled that unions have no such right.

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The erosion of employers’ managerial rights

October 29, 2017 - by: Mikaël Maher 0 COMMENTS

by Mikael Maher

In a recent arbitration case, Tshiuetin Rail Transportation Inc. v. Steelworkers, Local 7065-75, the arbitrator, Bruno Leclerc, and the Superior Court of Quebec challenged a well-established principle in labor relations, which is that an employer retains managerial rights in the absence of limiting provisions in the collective agreement.

In this case, the arbitrator and Superior Court found that the employer had violated the collective agreement although the agreement did not contain a limitation to the employer’s managerial rights in regard to the contested action. Rather, they found that the employer had violated the collective agreement because it did not contain a clear provision that allowed the employer to act as it did. Therefore, the question remains: What is happening to managerial rights, and what measures can employers take to protect these rights?

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Recent B.C. decision on secondary picketing at non-striking facility

October 15, 2017 - by: David McDonald 0 COMMENTS

by David T. McDonald

About 15 years ago, the Supreme Court of Canada changed the law on secondary picketing in Canada. That decision, RWDSU Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, ruled that secondary picketing was generally lawful unless accompanied by wrongful conduct such as violence or blockading. This meant that union members and striking employees could picket businesses that were not part of a labor dispute in an effort to put pressure on the struck employer.

The Pepsi-Cola decision left it open for governments to enact laws that restrict the ability to picket places other than the struck location. The laws vary across Canada. The British Columbia Labour Relations Code is an example of a law that prohibits secondary picketing.

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Life after certification applications: Lawful outsourcing and scope of bargaining units

by Karine Fournier and Valérie Gareau-Dalpé

Union certification applications can have profound impacts on the workplace. The bargaining unit’s composition will have implications for the conduct of the employer’s business, and it bears close attention.

The union applying for certification will be the one proposing the scope of the bargaining unit. Merely showing there is a more appropriate unit than the one proposed by the union is not enough. To challenge the proposed unit, employers must show that the proposed unit is actually inappropriate in the specific context of the company. Employers also face potential unfair labor practice complaints for their conduct during union organization campaigns.

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Blurred lines: Managers may have right to bargain collectively

February 26, 2017 - by: Valérie Gareau-Dalpé 0 COMMENTS

by Valérie Gareau-Dalpé

In several jurisdictions across Canada, the issue of unionization of managers and supervisors is a thorny one. In many cases, unionization is restricted to “employees,” a definition from which managers are excluded. In the province of Québec, the exclusion is based partly on the potential for conflicts of interest in having managers collectively bargain their own conditions of employment.

In two surprising decisions, the Tribunal administratif du travail of Québec (Tribunal) has questioned the constitutionality of this managerial exclusion under Quebec’s Labour Code. While the decisions stem from an administrative tribunal and have yet to make their way to various appeal processes available through courts, as the case may be, they could have ramifications in other provinces.

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Strangers at the table: Employers may need to accept observers in collective bargaining

December 11, 2016 - by: David McDonald 0 COMMENTS

by David McDonald

In Canada, collective agreements are generally accessible to the public. Canadian jurisdictions provide mechanisms to file collective agreements with government authorities, and it is not uncommon for the union or the employer to post their agreement on the web. However, the process of bargaining itself is private and typically carefully guarded by the parties. This allows for a free flow of information between the parties in order to achieve better negotiations.

In a recent case, a Canadian labor board was faced with a difficult question: What happens when one side tries to bring “observers” to the negotiation table? Surprisingly, the board ruled that observers could have a seat at the table.

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Arbitration awards: a permanent part of an employee file

by Emilie Paquin-Holmested

In Canada, amnesty clauses are commonly found in collective agreements. The purpose of such clauses is to erase disciplinary measures from an employee’s file after a given period, usually between six and 24 months. Therefore, normally employers cannot consider disciplinary measures that predate the amnesty period when determining the appropriate disciplinary measure to be imposed. read more…

Ontario court finds government’s ‘intransigent’ bargaining strategy unconstitutional

June 19, 2016 - by: Christopher Pigott 0 COMMENTS

by Chris Pigott

In 2015, we reported on the Supreme Court of Canada’s “New Labour Trilogy”—three landmark constitutional law decisions from January 2015 that called into question basic aspects of Canadian labor law. Those decisions sparked a massive debate in the labor law community as to whether Canadian workers had a brand new set of greatly expanded workplace rights.

Just over one year later, some lower courts appear to be taking the view that the New Labour Trilogy did not reshape Canadian workers’ rights to organize, bargain collectively, and take strike action. read more…

BC Court of Appeal takes a narrow view of the SCC’s New Labour Trilogy

August 09, 2015 - by: Christopher Pigott 0 COMMENTS

By Christopher Pigott

In a previous article, we reported on the Supreme Court of Canada’s “New Labour Trilogy,” a set of three landmark constitutional law decisions released in January 2015 that raised questions about basic aspects of Canada’s labor relations system. Unsurprisingly, the decisions sparked a huge debate in the Canadian labor law community as to whether the Supreme Court of Canada had reshaped Canadian workers’ rights to organize, bargain collectively, and take strike action. read more…

Changes coming to union certification process for federally regulated employers

May 17, 2015 - by: Daniel Mayer 0 COMMENTS

by Daniel Mayer

On June 16, important changes regarding union certification and decertification for federally regulated employers in Canada will come into effect. The federally regulated sector includes interprovincial and international transportation companies, airlines, railways, banks, and employees who work for the federal government. read more…

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