HN2100 Collective Agreement Administration With Paul Tilley Unit 1 Collective Agreement Administration

Unit 1 Unit 1: Collective Agreement Administration After completing this unit, you should be able to: Describe the evolution of Organized Labour and Labour legislation in Canada Describe the evolution and gowth in Private sector Labour Relations Describe the evolution and gowth in Pubic sector Labour Relations Explain specific requirements placed on collective agreement application, interpretation and administration by the Canada Labour Code Part I and the Labour Relations Act of Newfoundland and Labrador. Describe the effects of the Labour Standards Act of Newfoundland and Labrador and the Canada Labour Code Part III on the content and interpretation of collective agreement. Explain the role of quasi-judicial bodies and public administrative agencies on the administration of labour law and collective agreement administration.

Overview of Unit 1 Collective Agreement Administration exists because unions exist. The history of union growth in Canada has significantly influenced the evolution of the legal and administrative rules and the bodies that apply these rules at both the provincial and federal levels of government. This unit provides a brief overview of the history of unions and collective bargaining and the legislative framework that surrounds this field. In this unit we also will introduce some many of the basic topics that will be addressed in greater detail throughout this course.

The Legal and Legislative Framework for Canadian Labour Relations By definition, business organizations are made up of people who are organized to achieve a desired objective. Among the most challenging and complex issues facing these business organizations, and the governments that regulate them, are the issues that arise from the interaction of the people in the workplace — the relationships between management and employee, worker and employer and between employer and the array of regulatory bodies which supervise a wide variety of activities that occur in the workplace. To better manage these interactions, government and the judiciary have developed and honed labour and employment laws that reflect the underlying political, social, and economic forces which chart government policy.

The Historical context of Canadian Labour Law To understand Canadian Labour Law in its current form, it is imperative that one understands the historical context from which the system has evolved. If you look at the Constitution of Canada, the Federal government is allocated exclusive responsibility over certain things such as trade and commerce, and the provinces are are allocated responsibility for, among other things, property and civil rights. Unfortunately, there is no explicit allocation of responsibility for labour relations. Responsibility for labour relations was allocated to the provinces by judicial interpretation.

The Historical context of Canadian Labour Law Federal jurisdiction for labour only applies to those workers in jobs defined directly in the constitution and federally regulated: the post office, for example, and transportation, navigation, and communications. 90 percent of all employees and their employers in Canada are regulated by each of the provinces. A fragmented constitutional responsibility for labour relations has presented both difficulties and opportunities. The complexity of complying with so many different jurisdictions and laws is clearly a problem. The multi jurisdictional nature of Labour Relations in Canada also present opportunities: they help avoid the possibility that one bad law will cover the entire country, and they provide for considerable experimentation and innovation.

The Historical context of Canadian Labour Law In Canada, 37 percent of the work force is unionized, and 42 percent is covered by collective bargaining. These are impressive figures when compared with those for the United States. Newfoundland and Labrador has the highest proportion of unionized workers with over 53% of the work force being unionized; Alberta has the least with approximately 25% of its workforce unionized. Three major spurts in Canadian trade union membership growth can be identified (Smith 1989, 300). In the period immediately after World War 1 In the period immediately after World War 2 In the late 1960’s and early 1970s, when public sector trade unions, largely facilitated by new supportive legislation, brought civil servants, teachers, nurses, and other public employees into labour's fold. This dramatic growth, which is centred on Canadian trade unions active in the public sector, as opposed to international trade unions, is a significant development. The recent unionization of non-manual workers in the public sector has given a new complexion to the trade union movement. Trade unions in the 1980’s were increasingly made up of non-manual workers employed in the public service sector, and a large proportion of these workers were women.

The Growth of Private Sector Unions During World War II, the federal government assumed nation-wide jurisdiction over labour relations, the federal government of Prime Minister Mackenzie King introduced the Wartime Labour Relations Regulation (Order in Council PC 1003). This cabinet order, issued in 1944, contained a comprehensive private sector framework for the recognition of trade unions which informs our laws to this day. The central features of this framework were the following: Non-managerial employees (other than excluded categories) were given the right to form and join unions; Actions by employers against employees exercising the right to unionize were prohibited; Labour boards, not courts, were authorized to certify unions, on proof of majority support, as bargaining representatives for appropriate (employer specific and often plant centred) bargaining units; Once certified, a trade union became the exclusive bargaining representative of all employees in the bargaining unit, whether or not they were union members; Employers had to bargain in good faith; Before resorting to economic sanctions, the parties were required to participate in government-sponsored conciliation; and During the term of a collective agreement the parties could not engage in strikes or lockouts, but instead were required to submit differences arising under the collective agreement to grievance arbitration by a neutral third party.

The Growth in Public Sector Unions The unionization of Public sector unions in Canada came relatively late but adanced very quickly. The first legislation providing for public sector bargaining in Canada was introduced in by then pro union Saskatchewan premier Tommy Douglas in Further unionization did not occure for another 2 decades when between 1965 and 1975 the remaining provinces and the federal government passed legislation allowing their employees to bargain collectively. The massive unionization of the civil service resulted in two significant trends: The unionization of white-collar occupations that had previously been unorganized, and An increase in national union membership in Canada relative to international union membership, as a percentage of total union membership. Since 1967, there has been a steady and significant increase in public sector collective agreements as a percentage of major collective agreements. Similarly, there has been a corresponding increase in the number of employees covered by collective agreements in the public sector as a percentage of total employees covered by major collective agreements.

The Development of Employment Standards by Government Historically, there had been a reluctance to set employment standards at too high a level, in order not to undercut the attractiveness of collective bargaining. Some aspects of the employment relationship have been deemed too important to leave to collective bargaining, either because bargaining has not performed well or because it has little prospect of reaching all the workers that governments want to protect. All provinces across Canada have quite vigorous health and safety laws which 10 feature joint governance of health and safety issues through mandatory local workplace committees, disclosure, and speedy administrative inspection systems. Pay and employment equity concerns have come to attract vigorous standards legislation, applicable to all employees. A more recent emphasis federally and in NL has been on requiring employers to ensure that their work force is more consistent with the demographics of the local labour force.

The Development of Employment Standards by Government Human rights legislation has also been affected by an increasing interest in regulating 'systemic discrimination' as opposed to intentional wrongdoing. The underlying premise of these laws is not only fairness but also a belief that the Canadian workplace has excluded people who can make a significant contribution to society. A final changing characteristic of Canadian labour law relates to our labour force adjustment policies. There is a growing consensus throughout Canada that early, quality education preparing workers for a life of continued learning and easier access to effective mid-life education, training, and retraining is much more likely to produce cooperative labour-management relationships than any other single employment law reform.

The Legal Environment of Labour Relations Labour relations in Canada began as a process where workers voluntarily joined together to form organizations that would speak on their behalf in the workplace. Government has found it necessary to become involved in order to regulate and channel inevitable conflict. The purpose of Labour Legislation is three-fold: It establishes the basic rights and protections for employees and unions It establishes standards and basic requirements for employers. It removes conflict over the right of unions to exist or the right of employees to bargain with their employers It distributes power and levels the playing field for parties

Federal and Provincial Labour Relations Legislation Federal Legislation The primary employment legislation governing federally-regulated industries is the Canada Labour Code. This statute governs labour or industrial relations (including collective bargaining), occupational health and safety, hours of work, minimum wages, vacation entitlements, holidays, sanctioned absence, terminations, severance, and unjust dismissal. Under the Canada Labour Code, employees have the right to organize and join unions and to bargain collectively with employers. The code sets out the minimum contract requirements, including a clause to arbitrate all disputes during the life of a collective agreement, prohibition of certain specified unfair labour practices and application and termination of bargaining rights. The Canadian Human Rights Act protects employees and potential employees (i.e. candidates) from discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, and convictions for which a pardon has been granted. The Act further establishes the Canadian Human Rights Tribunal which has broad remedial powers, including the power to reinstate employees who are terminated, as well as the power to award modest financial compensation for injury to feelings, dignity and self-respect. The Canada Pension Plan Act and the Employment Insurance Act are federal Acts that govern all employers. The Canada Pension Plan Act provides individuals who qualify with pension benefits upon retirement or permanent disability. The Employment Insurance Act provides replacement income to individuals during temporary periods of unemployment.

Federal and Provincial Labour Relations Legislation Provincial Legislation The NL Labour Relations Act governs union activity in the province, granting private sector employees the right to be members in trade unions and participate in union activities. The Labour Relations Act also gives employers the right to be involved in employer organizations, establishes the Labour Relations Board and grants the Board jurisdiction over disputes arising under the Act. The Act confers on the Labour Relations Board the authority over many important aspects of labour relations, including the certification of unions to represent employees, the revocation of certification upon application by an interested party or parties in cases where certified unions no longer have the support of a majority of the bargaining unit members, unfair labour practices, successor rights determinations and imposition of first collective agreements. T he Act defines unfair labour practices and prohibits employers from interfering with union organizing or threatening, coercing or intimidating its employees during a union organization campaign. Newfoundland's Public Service Collective Bargaining Act covers public sector employees under provincial jurisdiction, but excludes some groups (see table below), such as teachers, which are covered by the Teachers Collective Bargaining Act. The Act contains provisions similar to those contained in the Labour Relations Act concerning certification and revocation of certification. Under the Public Service Collective Bargaining Act, the Labour Relations Board is responsible for the issuing of orders declaring certain employees within a bargaining unit to be essential employees for the health, safety or security of the public

Federal and Provincial Labour Relations Legislation PROVINCIAL EMPLOYMENT LEGISLATION (NL) The Labour Standards Act The Labour Relations Act The Human Rights Act The Workplace, Health, Safety and Compensation Act Occupational Health and Safety Act

The Common Law Framework of Canadian Labour Management The second key source of employment law is the Common Law (judge- made law), which establishes additional rights and remedies for employees. The common law in Canada tends to be the sole authority for the following employment issues: (1) an employee’s duty to mitigate his or her damages; (2) the enforceability of non-competition and non-solicitation agreements; and, (3) constructive dismissal. Additionally, contractual terms of employment that are not strictly regulated by statute may be significantly diminished in force, or even rendered void, by the common law.