Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 5 – SPECIAL CONTRACTUAL RELATIONSHIPS  Chapter 20 – Labour Law Prepared by Douglas H. Peterson, University of Alberta

Copyright © 2004 McGraw-Hill Ryerson Limited 2 LABOUR LAW Labour Law Defined Development of Labour Legislation in Canada Collective Bargaining Legislation The Union-Member Relationship

Copyright © 2004 McGraw-Hill Ryerson Limited 3 LABOUR LAW DEFINED Broad All areas of law concerned with the employment relationship Generally falls within provincial jurisdiction Narrow Collective Bargaining Trade unions The system of rules that governs collective relations amongst management, trade unions, their members, and the institutions involved in such relations

Copyright © 2004 McGraw-Hill Ryerson Limited 4 DEVELOPMENT OF LABOUR LEGISLATION Traditionally - viewed as restraint of trade and contrary to public policy 1872 – criminal code amended to recognize unions as lawful entities WWII – War Measures Act Established collective-bargaining framework

Copyright © 2004 McGraw-Hill Ryerson Limited 5 COLLECTIVE BARGAINING LEGISLATION Remove collective bargaining from the common law and courts and deal with it administratively Collective bargaining The process whereby an employer and a trade union seek to negotiate a collective agreement Done through legislation Employees choose an agent (union) through which negotiations take place

Copyright © 2004 McGraw-Hill Ryerson Limited 6 LABOUR RELATIONS Labour relations board – a body that administers labour relations legislation Trade union - an organization chosen by the employees to regulate the relations between the employer and the collective of employees Collective bargaining – a mechanism by which parties enter a collective agreement or contract Collective agreement – the employment agreement reached between the union and employer setting out the bargaining unit employees’ terms and conditions of employment

Copyright © 2004 McGraw-Hill Ryerson Limited 7 CERTIFICATION PROCESS Certification - employees’ application to labour relations board to be recognized as a bargaining unit Certification Process - the process by which a union is recognized as a bargaining agent for a group of employees

Copyright © 2004 McGraw-Hill Ryerson Limited 8 CERTIFICATION PROCESS Labour laws creates an orderly process for organization and recognition of unions Sets out specific rules of conduct Prohibits unfair labour practices Coercion, intimidation, blacklists, etc.

Copyright © 2004 McGraw-Hill Ryerson Limited 9 BARGAINING UNIT Bargaining Agent - one per bargaining unit Given exclusive authority to negotiate with employer Any contract negotiated is binding on all employees within the unit Voluntary recognition Employer agrees to recognize a trade union as the bargaining agent for its employees Often challenged by employees who do not want to be represented by the recognized bargaining agent Membership drive A union attempts to persuade a majority of employees in an appropriate bargaining unit to become union members

Copyright © 2004 McGraw-Hill Ryerson Limited 10 BARGAINING UNIT Only “employees” entitled to bargain collectively Excluded groups Professionals employed in professional capacity Management employees Employees employed in confidential capacity Varies by province Essential services – most provinces have legislation dealing with such services

Copyright © 2004 McGraw-Hill Ryerson Limited 11 LABOUR LAW COLLECTIVE BARGAINING RELATIONSHIP EMPLOYER LABOUR UNION EMPLOYEE BARGAINING UNIT Voluntary Recognition of Union by Employer or Provincial or Canada Labour Relations Board Certifies Union Selected by Employees to Be the Bargaining Agent for the Bargaining Unit Negotiate Collective Agreement

Copyright © 2004 McGraw-Hill Ryerson Limited 12 THE NEGOTIATION PROCESS Union negotiates on behalf of its members with the goal of reaching a collective agreement Collective Agreements Each party can give notice to commence bargaining Parties must make reasonable efforts to reach an agreement

Copyright © 2004 McGraw-Hill Ryerson Limited 13 NEGOTIATION PROCESS Duty to Bargain in Good Faith Both parties must make reasonable efforts to negotiate an agreement includes the duty to Meet with the other party Engage in full and informed discussion Supply information Complete negotiations

Copyright © 2004 McGraw-Hill Ryerson Limited 14 COLLECTIVE AGREEMENTS Collective Agreements Must be in writing Set forth the terms and conditions of employment Be ratified by both parties

Copyright © 2004 McGraw-Hill Ryerson Limited 15 DISPUTE SETTLEMENT Types of disputes Recognition disputes – between union and employers during organizational process Recognized as bargaining unit/agent Interest dispute – dispute about terms of the collective agreement Rights dispute – disagreement over meaning or interpretation of a provision in collective agreement Jurisdictional dispute – between 2 unions as to who should represent a group or do a particular job

Copyright © 2004 McGraw-Hill Ryerson Limited 16 DISPUTE SETTLEMENT Collective agreement provides a process for settling disputes Grievance Mediation Arbitration Grievance process – a procedure for resolving disputes within a collective agreement

Copyright © 2004 McGraw-Hill Ryerson Limited 17 MEDIATION Intervention by a third party to help facilitate an agreement Conciliation or mediation may be mandated by legislation

Copyright © 2004 McGraw-Hill Ryerson Limited 18 ARBITRATION Arbitration - a method for settling disputes and grievances arising out of the agreement Mandatory in rights disputes Decisions of arbitrator's) are binding on parties The final step in the grievance process – usually third party binding arbitration Seniority – usually employer cannot promote, transfer, lay off, or recall without giving some consideration to the seniority of the employee First in, last out rule

Copyright © 2004 McGraw-Hill Ryerson Limited 19 CONFLICT Parties fail to reach a collective agreement or a collective agreement has expired One or both parties may resort to various actions Types of Actions Strike Lockout Picketing Secondary Picketing

Copyright © 2004 McGraw-Hill Ryerson Limited 20 STRIKES Strike – a cessation of work or a withdrawal of services by a group of employees Purpose is to compel employer to a certain conditions of employment A concerted activity with a common purpose which limits or restricts some industrial activity Only allowed if not otherwise prohibited by law Called by the union Strike not allowed when a collective agreement is in place Illegal strike otherwise “Wildcat” Strike – spontaneous walkout by employees

Copyright © 2004 McGraw-Hill Ryerson Limited 21 LOCKOUT Refusal of employee enter to the workplace by an employer when collective bargaining with the employees fails to produce a collective agreement Action by employer to prevent employees from working Purpose is to compel employees to accept certain conditions of employment Only allowed if not otherwise prohibited at law

Copyright © 2004 McGraw-Hill Ryerson Limited 22 PICKETING The physical presence of persons at or near the premises of another for the purpose of conveying information Need more than one person Attempt to secure sympathy for “cause” from various third parties Attempts to prevent persons from entering or leaving is actionable at law Causing damage is actionable at law Remedy: employer ask court for injunction to stop picketing or reduce to certain number of persons

Copyright © 2004 McGraw-Hill Ryerson Limited 23 SECONDARY PICKETING Picketing at other than the employer’s business Protected by s.2 of the Charter (freedom of speech) Limited to peaceful picketing Unlawful if criminal activity, trespass to property, intimidation, defamation, or misrepresentation Could lead to tort of inducement to breach contract

Copyright © 2004 McGraw-Hill Ryerson Limited 24 UNION-MEMBER RELATIONSHIP An unincorporated entity No existence separate from its members Relationship with members is contractual Rights of members governed by contract Collective-Bargaining legislation Limitations on rights of trade unions to refuse membership or to expel members Would result in inability to secure employment in unionized industries

Copyright © 2004 McGraw-Hill Ryerson Limited 25 UNION-MEMBER RELATIONSHIP Closed Shop Clause Employer agrees to hire only persons who are already union members Union-Shop Clause Continued employment is conditional upon union membership Membership in unions cannot be refused on various grounds Must be on legitimate and justifiable grounds

Copyright © 2004 McGraw-Hill Ryerson Limited 26 UNION-MEMBER RELATIONSHIP Unjustified Grounds Race, creed, colour, sex, nationality, place of origin, other discriminatory factors Members must adhere to rules and obligations set out in organization’s constitution Failure to do so may result in expulsion

Copyright © 2004 McGraw-Hill Ryerson Limited 27 DISCIPLINE AND DISCHARGE Arbitrator in assessing whether the penalty is appropriate will consider The record and service of the employee Provocation Any special economic hardship imposed on the employee by the penalty The seriousness of the offence Premeditation Uniform enforcement of policies and rules Circumstances negating intent Condonation

Copyright © 2004 McGraw-Hill Ryerson Limited 28 DUTY OF FAIR REPRESENTATION Union must fairly represent Collective sense Individual sense Canada Labour Code (provincial codes) requires: Act in good faith Act in non-arbitrary manner Act in non-discriminatory manner Take grievances to arbitration when appropriate

Copyright © 2004 McGraw-Hill Ryerson Limited 29 SUMMARY Narrow sense Labour law refers to area of collective bargaining and union representation Collective Agreement Sets out terms and conditions of employment relationship Bargaining unit – acts on behalf of employees after being certified Disputes go to labour relations board